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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to June 30, 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

EPA Invites Public Participation at SSO Workshop; NACWA Encourages Member Attendance

In a June 16 Federal Register notice , EPA invited the public to participate in its July 14-15 workshop on sanitary sewer overflows (SSOs) and peak wet weather discharges.  NACWA has been invited to participate in the facilitated discussion portion of the workshop, which will also include representatives from state permitting authorities and environmental groups.  NACWA’s representatives for this discussion will be Ben Horenstein, Manager of Environmental Services at East Bay Municipal Utility District and Co-Chair of NACWA’s Facility & Collection System Committee, and Lisa Hollander, Special Liaison for Legislative and Regulatory Affairs at the Northeast Ohio Regional Sewer District and Chair of NACWA’s Legal Affairs Committee.  As stated in the Federal Register notice, “EPA invites other interested members of the public to observe the workshop and to offer verbal comments at designated times during the workshop or to submit written comments to the Agency.”  Registration for observers is required by July 6 at www.epa.gov/npdes/sso. NACWA encourages its members to attend the workshop if possible, and to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if attending.

EPA states in the notice that this workshop will be a follow-up to the Listening Sessions that were held last year, and will provide an opportunity for organizations and individuals to elaborate on their recommendations.  EPA also provided a list of specific issues that will be discussed, including reporting of SSOs; components of capacity, management, operations, and maintenance (CMOM) that should be included in permits; permitting for collection systems; and authorization of SSOs under certain circumstances.  NACWA’s SSO Workgroup held a conference call on June 28 to work on refining the Association’s positions on these issues in advance of the facilitated session.  NACWA will be meeting prior to the workshop with staff from other organizations participating in the facilitated session, including American Rivers and the Natural Resources Defense Council (NRDC), to determine the areas of consensus between the environmental groups and the wastewater utilities.  NACWA and the Water Environment Federation (WEF) will also be discussing the relevant issues before the workshop in order to present a consistent wastewater utility perspective at the workshop.

The workshop will be the major topic of discussion at the Facility and Collection System Committee meeting on July 20 at NACWA’s Summer Conference, and NACWA will also issue an Advocacy Alert after the workshop which will provide a detailed summary of the discussions.

NACWA Provides Clean Water Community Perspective at EPA Workshop on Recreational Water Quality Criteria

NACWA staff and member agency representatives participated in a June 14-15 EPA workshop on the Agency’s ongoing efforts to develop new or revised recreational water quality criteria.  The new federal criteria are being designed to protect surface waters for primary contact recreation (e.g., swimming) and, when published in October 2012, could impact all of NACWA’s members.  The workshop was the last major stakeholder meeting before EPA begins crafting the actual criteria based on the new scientific information it has collected.  During the workshop, EPA provided an overview of the scientific studies it has conducted over the last 2-3 years as the result of a lawsuit filed over the Agency’s failure to meet its obligations under the Beaches Environmental Assessment and Coastal Health (BEACH) Act (Natural Resources Defense Council [NRDC] v. EPA).  The BEACH Act of 2000 required EPA to conduct certain studies and develop new or revised water quality criteria for coastal recreation waters by 2005.  When EPA failed to meet this statutory deadline, NRDC filed suit to compel the Agency to act.  NACWA intervened in the lawsuit to ensure the Agency would have sufficient time to conduct the scientific work needed to develop meaningful criteria and that there would be sufficient opportunities for stakeholder input.

Criteria to Apply to All Waters
EPA’s presentations during the workshop also outlined the Agency’s current thinking on what the new criteria might look like.  While the BEACH Act applied only to coastal recreation waters, EPA is currently planning to make the criteria applicable to all waters designated for primary contact recreation, including inland rivers, lakes, and streams.  This approach will have major implications for all Clean Water Act (CWA) programs and all of NACWA’s members.  As far as the structure of the new criteria, the Agency is currently signaling that it will preserve much of the existing content of the current criteria EPA published in 1986.  A new element of the criteria would be the addition of enterococci values for fresh and marine waters enumerated using a new rapid test method, quantitative polymerase chain reaction (qPCR).

Public Comment Slated for Early 2012
The draft criteria recommendations should be released in early 2012 for public comment, with a target of October 2012 for final publication of the criteria recommendations by EPA.  The Agency’s current thinking on the criteria could still change as it continues to brief senior management.  EPA signaled during the meeting that implementation guidance for the criteria would not be released until 2013, after publication of the final criteria, and NACWA urged the agency to release the criteria concurrent with the implementation guidance.  EPA is planning to conduct a webinar in September to brief those who could not attend the workshop and NACWA’s workgroup on this issue will continue to actively engage the Agency on its criteria development efforts.  A complete overview of the issues covered at the workshop is available in Advocacy Alert 11 – 17.

Air Quality

EPA Finalizes Emissions Standards for Internal Combustion Engines

In the June 28 Federal Register, EPA published a final rule revising the new source performance standards (NSPS) for stationary compression ignition and spark ignition internal combustion engines.  After the original NSPS rule was promulgated in 2006, EPA received comments that the standards were not feasible for certain engines and that owners and operators did not have enough flexibility to deviate from the manufacturers’ operation and maintenance procedures.  The proposed rule addressed these issues, and NACWA submitted comments generally supporting the new requirements, which are geared toward the manufacturers of the engines rather than owners and operators.  The revised standards are phased in between 2013 and 2017 for different engine sizes.  While NACWA requested that EPA consider an exemption for engines that use digester gas, since it may be difficult for these engines to meet the new standards, EPA did not provide this exemption in the final rule.  NACWA will closely monitor standards for engines fueled by digester gas to ensure that utilities are encouraged to use their biogas as fuel rather than wasting this valuable resource.

Biosolids Management

Work on SSI Issues Proceeds, NACWA Requests Intervention in Related Air Litigation

NACWA has learned that EPA is actively reviewing the Association’s petition for reconsideration and stay of the sewage sludge incineration (SSI) Clean Air Act (CAA) rule and that the Agency plans to make a decision on the petition and stay by July 22, a key milestone in the pending litigation over the rule (NACWA v. EPA).  NACWA is currently working to set up a meeting with the lead EPA staff responsible for making the final decision on granting the Association’s petition.

In a related development, NACWA filed a Motion to Intervene on June 15 in a lawsuit brought by the Sierra Club challenging EPA’s final SSI rule.  The Sierra Club litigation seeks to challenge EPA’s decision to lower the mercury emission limits in the final SSI rule.  Although NACWA has also started its own challenge to the SSI regulation, the Association’s intervention in the Sierra Club case will ensure that the interests of NACWA’s municipal members are voiced and are protected from any attempts by the Sierra Club to have the mercury emission limits increased.

NACWA also filed a Motion to Intervene June 20 in a separate CAA case that could impact EPA’s SSI rule. The lawsuit was filed by the Sierra Club and challenges EPA’s determination that the Agency has met its statutory requirement to control emissions from 90 percent of the area source emissions of the 30 hazardous air pollutants that are subject to emission standards.  EPA indicated that its recent rule establishing air emissions for SSIs helped to meet its 90 percent requirement.  As a result, any challenge to EPA’s determination could potentially impact how the Agency regulates SSIs even if NACWA is successful in its parallel challenge to the SSI rule.  Sierra Club’s legal case against the 90 percent determination is likely to attempt to increase the stringency of the emissions standards for area source categories, including those covered by the SSI rule.  NACWA will use its proposed intervention to push back against this potential argument and protect gains made in the Association’s own legal and administrative challenges to the SSI rule.

NACWA’s advocacy efforts in all of these cases are being supported by the Association’s Sewage Sludge Incineration Advocacy Coalition (SSIAC).  The Association will continue to monitor developments, coordinate activities between the numerous cases involving SSIs, and report to the membership on any updates.

NACWA Initiates Legal Challenge to EPA’s Definition of Solid Waste Rule

NACWA on June 16 filed a legal petition for review of EPA’s final definition of solid waste (DSW) rule with the U.S. Court of Appeals for the District of Columbia Circuit.  This action represents the beginning of the Association’s legal action against the rule and marks the next step in NACWA’s effort to challenge EPA’s new regulations on sewage sludge incinerators (SSIs).  The final DSW rule was published in March at the same time as EPA’s SSI rule, and provides a crucial regulatory foundation for the SSI rule by defining any biosolids that are incinerated as a non-hazardous solid waste.  NACWA’s lawsuit will challenge that determination and argue that Congress never intended for biosolids to be treated as a solid waste under federal solid waste or clean water laws.

NACWA is also concerned about the DSW rule’s potential impacts on other forms of biosolids management – as well as certain wastewater treatment plant operations – and will raise those concerns in the legal challenge (see related story).  The petition filed this week is simply a procedural document to initiate the lawsuit, and NACWA will spell out its arguments against the DSW in more detail in subsequent court filings.  NACWA has previously initiated both a legal and administrative challenge to EPA’s final SSI rule.  NACWA’s efforts in both the SSI and DSW rule challenges are being supported by the Association’s Sewage Sludge Incineration Advocacy Coalition (SSIAC).

Regulatory Status Called into Question for Digester Gas and Biosolids Destined for Combustion Units

The regulatory status of digester gas generated during the anaerobic digestion of sewage sludge was recently called into question by a new EPA rule.  The same rule will impact the regulatory status of any biosolids or biosolids-derived products that are burned for energy recovery, regardless of the type of combustion unit.  The final rule , Identification of Non-Hazardous Secondary Materials That Are Solid Waste (76 Fed. Reg. 15456), published March 21, 2011, defines as a solid waste any sewage sludge or biosolids that is combusted.  This definition rule, which was developed to assist EPA in the drafting of a series of Clean Air Act (CAA) rules for incinerators and boilers, became effective on May 20, 2011.

While the most visible impact of the new definition rule for clean water agencies is on the regulatory status of sewage sludge incinerators (SSIs), the definition rule has also created confusion over the regulatory status of gas generated from anaerobic digestion of sewage sludge and biosolids and biosolids-derived products that may be combusted in units other than SSIs.  NACWA will continue to seek additional clarification on the contained gas issue and the regulatory status of digester gas.  See Advocacy Alert 11-16 for a detailed discussion of this issue.

Climate Change

NACWA Participates in Climate Resilience Tool Workgroup

NACWA and representatives from two of its member agencies – Tony Quintanilla, Chair of NACWA’s Climate Change Committee and Assistant Director of Maintenance & Operations at the Metropolitan Water Reclamation District of Greater Chicago, and Dave White, Government Relations & Strategic Policy Officer at the King County Department of Natural Resources and Parks – are participating in a workgroup to determine enhancements to EPA’s Climate Resilience Evaluation & Awareness Tool (CREAT), which is part of the Agency’s Climate Ready Water Utilities initiative.  CREAT is a software tool designed to help drinking water and wastewater utilities understand potential climate change threats and assess potential risks to their utilities.  CREAT is available for free download on EPA’s website, and the Agency is planning training sessions to help utilities learn about the tool.  The CREAT workgroup met June 20-22 in Washington, D.C., to recommend enhancements to the second version of the tool and discuss the energy management functions that will also be added.  NACWA will keep members informed of training opportunities for CREAT, and this tool and EPA’s other Climate Ready Water Utilities activities will be a topic of discussion at the July 19 Climate Change Committee meeting at NACWA’s Summer Conference in Chicago.

White House Issues Water Quality Climate Change Plan; NACWA to Comment

The White House Council on Environmental Quality (CEQ) released its June 2 draft report, National Action Plan: Priorities for Managing Freshwater Resources in a Changing Climate , which recommends actions that federal agencies should take to help water resource managers understand and reduce the risks of climate change.  The Plan was developed by a workgroup consisting of representatives from federal agencies, including EPA and the Department of Agriculture.  The six general recommendations in the Plan are to establish a planning process, improve water resources and climate data, strengthen vulnerability assessment, improve water use efficiency, support integrated water resources management, and educate water resource managers.  While NACWA’s initial review of the Plan did not reveal much that is new or innovative regarding water resource management or wastewater treatment issues, the Association will use the comment opportunity to emphasize that water quality will be best protected and improved in the face of climate change through a watershed approach, with regulatory prioritization as a key component – echoing the message of NACWA’s Money Matters™ campaign and the work of NACWA’s Strategic Watershed Task Force.  Comments are due July 15, and NACWA members should send any input to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by July 8.

Nutrients

NACWA Files Amicus Brief in Florida Nutrients Case, Pushes Back on EPA Nutrient Limits

NACWA filed a brief June 15 in the ongoing litigation over EPA’s numeric nutrient limits recently issued in Florida, supporting the Association’s Florida members in their legal challenge and questioning the Agency’s authority to promulgate the limits.  The NACWA brief, filed in support of the Florida wastewater utilities’ Motion for Summary Judgment in the case, argues that EPA’s actions in Florida are fundamentally inconsistent with the limited role that Congress envisioned under the Clean Water Act (CWA) for federal involvement in establishing water quality standards, especially for nutrients.  NACWA further alleges that EPA’s decision to impose limits on Florida illegally usurped the state’s primary role in establishing nutrient limits and will have significant national implications by setting a negative precedent for the potential federalization of nutrient water quality standards beyond Florida.

NACWA’s brief also argues that EPA’s approach for developing the limits in Florida is legally and scientifically indefensible, especially because the criteria were developed absent a demonstrated cause-and-effect relationship as mandated by the CWA.  Additionally, the Florida limits are at odds with long-standing EPA guidance regarding development of water quality criteria for nutrients given their uniquely complex nature and the scientific need for employing site-specific approaches.

The case, Florida Wildlife Federation et al v. EPA, is part of a broad challenge to EPA’s federalization of Florida’s nutrient criteria, which the Agency finalized in November 2010.  Additional information on the case is available on NACWA’s Litigation Tracking webpage.  NACWA will keep the membership updated on any developments.

Regulatory Policy

EPA Releases Final Clean Water Act Action Plan for Permitting, Enforcement Issues

EPA recently released its final Clean Water Act (CWA) Action Plan , outlining a series of new approaches for revamping permitting, compliance, and enforcement actions under the National Pollutant Discharge Elimination System (NPDES) program.  NACWA previously submitted comments and a white paper to EPA to provide input on issues being considered for the Action Plan.  A number of the Agency’s approaches in the final plan reflect NACWA’s suggestions, including a move towards electronic reporting and efforts to better coordinate federal and state permitting and enforcement actions under the NPDES program.

The most significant change that NACWA members will see under the Action Plan is a move to switch existing paper reporting to electronic reporting in an effort to increase the speed, quality, and scope of information that EPA and states receive from regulated facilitates.  To implement this change, EPA is expected to propose a NPDES Electronic Reporting Rule by the fall of 2011, with a final rule in the fall of 2012.  This rule will likely require all discharge monitoring reports (DMRs) to be submitted electronically, and will also require existing paper program reports, such as combined sewer overflow (CSO), sanitary sewer overflow (SSO), pretreatment, biosolids, and municipal separate storm sewer system (MS4) reports to be converted to electronic form.  Many NACWA members had expressed an interest in moving toward an electronic reporting system to improve the accuracy of the data collected by states and EPA, and NACWA will be an active participant in the rulemaking process when the rule is proposed later this year to ensure it is appropriately crafted.

Another key element of the Action Plan will be an effort to better coordinate the permitting, compliance, and enforcement programs among the states and EPA to ensure consistency in carrying out the NPDES program.  This will include the development of annual joint NPDES work plans between EPA Regions and the states, better oversight of state programs by EPA, and streamlining of NPDES enforcement and permitting oversight activities.  NACWA’s previous comments emphasized a need to increase coordination between the states and EPA on this issue, and the final Action Plan reflects an effort on the part of EPA to accomplish this goal.

Other components of the Action Plan include the potential for additional self-monitoring requirements for regulated facilities and the development of improved analytical tools to identify significant water quality problems.  NACWA will closely monitor EPA’s actions going forward to implement the Action Plan and engage with the Agency as necessary to ensure the interests of NACWA members are protected.  Additional information on the Action Plan is also available on EPA’s website.