» Clean Water Current Archive

October 21, 2011

Senate Committee Releases FY 2012 Budget for EPA’s State Revolving Funds

The Senate Appropriations Committee released its Fiscal Year (FY) 2012 budget for the EPA’s State Revolving Fund programs.   In line with NACWA’s requests, the committee recommended solid funding numbers for the Clean Water State Revolving Fund (CWSRF) of approximately $1.5 billion as well as the Drinking Water State Revolving Fund (DWSRF) of approximately $963 million.

Earlier this year, the House Appropriations Committee released their budgets for the CWSRF and DWSRF at $689 million and $829 million respectively, marking a significant gap between the House and Senate figures.  It is unclear whether the Interior/EPA Appropriations bill will be voted on by either chamber or folded into a larger omnibus appropriations bill later in the year.  Either way it is clear that the funding numbers will fall somewhere between the House and Senate proposal and NACWA will work to maintain the highest possible level of federal funding.  The Association is also working to ensure an additional $10 billion for the CWSRF in any jobs package that advances.

There are several controversial policy riders on the House appropriations package that seek to limit EPA regulatory efforts. Democratic leadership in Congress and the White House has vowed to fight these efforts but there has been no indication by either side as to a potential resolution of the rider issue and it will likely delay the final outcome of the FY12 spending measures.  The riders include prohibiting EPA from spending any money on implementing recent regulations under the Clean Air Act (unrelated to NACWA’s sewage sludge incineration efforts) and the Clean Water Act, including the total maximum daily load (TMDL) for nutrients in the Chesapeake Bay.

Congressmen Send Letter to EPA Requesting Reconsideration of SSI Rule

Congressmen Steven LaTourette (R-Ohio) and Bill Pascrell (D-N.J.) sent a letter to EPA Administrator Lisa Jackson, urging the Agency to reconsider the newly imposed Clean Air Act (CAA) maximum achievable control technology (MACT) standards for municipal sewage sludge incinerators (SSIs).  The letter states, “[f]or 46 years Congress has regulated the disposal of sewage sludge pursuant to Section 405 of the Clean Water Act (CWA).  By applying Section 129 standards for sewage sludge incineration emissions, EPA is not only ignoring its CWA statutory authority, but it is also exceeding specific authority in the CAA.  We therefore urge you to reconsider this action and continue to regulate POTWs’ sewage sludge incinerators in accordance with Section 405 of the CWA and pursuant to Section 112 of the CAA.”

This letter is yet another step in NACWA’s ongoing effort to have EPA reconsider the new regulations on SSIs.  NACWA is in the process of obtaining signatories for a Senate counterpart letter and hopes this Congressional support will help ensure that EPA decides to reconsider the rule while at the same time providing clear evidence of Congressional intent as the lawsuit advances.

EPA Announces Planned Revisions to Key Regulation Supporting SSI Rule

In related news on SSIs, EPA announced late last week that it will make revisions to its final definition of solid waste rule that provides the underlying basis for EPA’s SSI rule — a move that   could impact NACWA’s advocacy efforts on both the solid waste and SSI regulations.  Specifically, EPA sent an October 14 letter to the U.S. Senate indicating that the Agency would initiate a rulemaking to revise the non-hazardous secondary materials (NHSM) rule, also known as the solid waste definition rule.  The NHSM rule provides an important regulatory foundation for EPA’s final SSI rule. EPA indicated in the letter that the revisions to the NHSM rule will codify provisions to “avoid creating disincentives for burning clean materials, such as biomass, for fuel, while preserving the public-health protections required by the Clean Air Act.”  The rule revisions will be conducted on the same timeline as the reconsideration of the Boiler and Commercial and Industrial Solid Waste Incinerator rules, which means that EPA would have to release the proposal this month, and finalize the revisions by April 2012.

In its letter, EPA briefly outlines what it intends to address in the revisions. The revisions appear focused on clarifying which biomass materials are considered traditional fuels, not wastes, when burned for energy recovery.  Sewage sludge is not currently considered a biomass by the rule. Other revisions will focus on the non-waste petition process and the legitimate fuel criteria for contaminants.  Though NACWA is investigating further, it is unlikely that any of the proposed changes will impact EPA’s determination that SSIs are burning solid waste and must be regulated under Section 129 of the Clean Air Act.  EPA’s determination that SSIs are not energy recovery units will likely preclude them from taking advantage of any of the new provisions.

The proposed changes, however, will likely provide some benefit for the combustion of sewage sludge in units that meet EPA’s energy recovery standard (e.g., cement kilns and boilers). NACWA is working to set up a meeting with EPA to discuss the forthcoming proposed revisions and learn more about any potential impacts on the regulatory status of sewage sludge.   Even if NACWA’s sewage sludge-specific concerns are not addressed via the new rule, it is possible that the current litigation over the final NHSM rule could be placed on hold by the court until the revisions are complete.  NACWA and the other litigants in the case are seeking an extension to an upcoming filing deadline on briefing format to allow everyone to review EPA’s proposal and determine whether placing the litigation on hold is appropriate.

While the substance of the revisions to the NHSM rule will likely not have a major impact on NACWA’s SSI litigation, the timing of the revisions and the potential for a stay of this rule may have impacts on the SSI litigation.  NACWA is still working to determine the nature and extent of these potential impacts but, even if the NHSM litigation is placed on hold, NACWA will still continue forward with the legal challenge to the SSI rule.  The Association will continue to track developments and keep the membership and the sewage sludge incineration advocacy coalition (SSIAC) fully updated.

NACWA Seeks Utility Endorsements for Farm Bill Recommendations

NACWA is asking its member utilities to sign-on in support of policy recommendations in the next Farm Bill that would reduce nutrient run-off from agricultural lands.  The recommendations were developed with input from NACWA’s Farm Bill workgroup and from members of the Healthy Waters Coalition, a group of municipal water, wastewater, public works, state regulators, agriculture and conservation organizations convened by NACWA to advocate for stronger agricultural policies to reduce nutrient run-off.  The recommendations represent a consensus on key policies that should be pursued if serious efforts are to be made to address excessive phosphorus and nitrogen levels in U.S. waterways.  The Coalition plans to roll out these recommendations for all Members of Congress early next year as Congress undertakes legislative work on drafting a Farm Bill.  NACWA is urging your utility to sign on to these recommendations to demonstrate that wastewater utilities from across the country are concerned about this issue and want Congressional action to address it.  The deadline to sign on to these recommendations is November 11, 2011.  Please contact NACWA’s Legal and Government Affairs Associate, Thea Graybill, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it to endorse the policy recommendations or if you need any additional information.

NACWA, EPA Discuss Priority Issues at WEFTEC, Focus Is on Integrated Planning/Permitting and Nutrients

NACWA’s annual Hot Topics Breakfast at WEFTEC 2011 in Los Angeles, Calif., drew over 70 NACWA members and other guests and featured comments from EPA’s James Hanlon, director of the Office of Wastewater Management; Ephraim King, director of the Office of Science and Technology; and Loren Denton, chief of the Municipal Enforcement Branch in the Office of Enforcement and Compliance Assurance (OECA).  Hanlon kicked off the meeting with a discussion of EPA’s new effort to develop an integrated planning framework that would help clean water agencies prioritize their Clean Water Act (CWA) obligations – as NACWA has urged through its Money Matters ™ campaign, which the Water Environment Federation (WEF) Board of Directors officially endorsed at WEFTEC 2011.  Hanlon indicated that the issue of sanitary sewer overflows (SSOs) would be part of the integrated planning discussion.  Though he expressed his personal interest in developing an SSO rule as a long-term goal, Hanlon indicated that work on an SSO rule would not be getting underway in the next few months given the need to focus on other priorities.  Denton emphasized that OECA is working closely with the Office of Water on the integrated planning effort, and stressed the importance of a consistent federal message on the issue, encouraging attendees to contact him if they believe their EPA Region is at odds with Headquarters.  Denton also noted that the integrated planning effort was not intended to address existing settlements and that those consent decrees would be handled on a case-by-case basis.

King provided an update on the final 2010 Effluent Guidelines Program Plan, released on October 20, which includes information about the Agency’s decision to develop pretreatment requirements for the wastewater produced by hydraulic fracturing for natural gas extraction.  King also stated that the proposed dental amalgam separator rule will be published in early 2012.  On nutrients, King stressed the importance of working together on implementation.  Though much debate remains over whether and how to establish numeric nutrient criteria, King stressed that the numbers that are being developed will continue to push the limits of technology.  King committed to working with NACWA and other stakeholders to explore implementation tools, including longer averaging periods, variances, etc., that can help clean water agencies meet their permit limits.  His overarching point to the audience, however, was that water quality standards overall would only become more stringent as technology advances and that municipalities and states needed to come to the table as partners with EPA in determining how best to meet these challenges.

NACWA Seeks Member Input on 2010 Effluent Guidelines Program Plan

EPA released a pre-publication version of its final 2010 Effluent Guidelines Program Plan, which is available on EPA’s website. EPA will develop effluent guidelines for the Coalbed Methane Extraction industry and pretreatment standards for the Shale Gas Extraction industry and for mercury discharges from dental offices. EPA plans to publish the proposal for dental amalgam separators in early 2012. The final Plan also requests comments on EPA’s 2011 annual review of existing effluent guidelines and pretreatment standards. Comments will be due 30 days after the plan is published in the Federal Register, and NACWA will provide a summary of the Plan in an Advocacy Alert after it is published. Please send your comments or questions to NACWA’s Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Key Speakers Confirmed for Law Seminar, Make Your Plans to Attend Today!

NACWA has confirmed a number of dynamic featured speakers for the upcoming 2011 Developments in Clean Water Law Seminar, scheduled for November 16–18 in beautiful Charleston, South Carolina.  Mark Pollins, Director of the Water Enforcement Division of EPA’s Office of Enforcement and Compliance Assurance, will provide an opening address on Friday morning of the conference covering timely clean water enforcement and permitting issues.  In particular, Pollins will discuss EPA’s new efforts to move toward a more integrated permitting system in line with NACWA’s Money Matters ™ campaign and will provide key details on the Agency’s plans.  EPA’s decision to pursue an integrated permitting approach signals a potentially significant change in how clean water utilities meet their regulatory obligations, and this discussion at the Seminar will provide utility attorneys and managers with critical insights on how this change could impact their operations.

Additionally, Alex Dunn, Executive Director and General Counsel of the Association of Clean Water Administrators, will provide a keynote address on Wednesday of the Seminar and discuss how clean water utilities and their state regulators can improve communication and collaboration in the face of growing mutual clean water legal challenges.  Given Dunn’s background in working previously with NACWA members and her new position working with state regulators, she will be able to offer some unique perspectives and insights on how clean water agencies can improve relationships with their states.  There will be many other top clean water attorneys and professionals speaking at the conference as well on a variety of topics including wet weather, nutrients, biosolids management, water quality, and municipal consent decrees.

Registration for the Seminar is still available and additional information can be found on NACWA’s website at www.nacwa.org/11law, including a conference agenda and information on Continuing Legal Education (CLE) credits.  Although space is becoming tight at the conference hotel, NACWA is working on securing additional rooms at a nearby hotel and will have information available very soon on the Association’s website.  Anyone who would like to be put on the waiting list for availability in the conference hotel should contact Robin Davis immediately at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .