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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to the end of October 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 Sends Memo on Integrated Planning Framework to Regional Offices, Seeks to Work as “One EPA” with States and Local Governments

EPA sent a memorandum  to its Regional Administrators and regional water and enforcement office directors on October 27 outlining its plans to develop an integrated planning framework.  The framework is intended to help clean water agencies identify cost-effective and protective solutions to meet their Clean Water Act (CWA) wastewater and stormwater obligations, and then prioritize their investments to address the most pressing water quality issues first.  As NACWA reported earlier this month, EPA announced its plans to issue this memorandum during an October 3 meeting with key NACWA utility representatives and other stakeholders.

NACWA applauds this action by Nancy Stoner, EPA's Acting Assistant Administrator for Water, and Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement & Compliance Assurance (OECA), as a vital first step toward recognizing the enormous affordability challenges facing clean water agencies.  The memo sends a strong message that EPA is serious about considering all of a municipality's CWA obligations together and evaluating implementation from both an environmental and cost standpoint.  The October 27 memorandum and forthcoming framework were inspired by the momentum NACWA has generated through its Money Matters™ campaign and related efforts spearheaded by the U.S. Conference of Mayors.  The memo stresses that EPA must be “mindful that many of our state and local government partners find themselves facing difficult financial conditions” and that the Agency must “proceed as one EPA” to ensure the most cost-effective approaches for meeting the shared objectives of clean water are pursued.  EPA’s memo indicates that the Agency intends to use existing flexibility within current CWA authorities to “evaluate a municipality’s financial capability...to set appropriate compliance schedules, allow for implementing innovative solutions and sequence” critical capital projects and operation and maintenance work in a more cost-effective manner that still ensures human health and the environment are protected.

The memo notes that EPA water and enforcement office officials are already working on a draft integrated planning framework.  The framework, when drafted, will identify 1) the essential components of an integrated plan; 2) steps for identifying municipalities that might make best use of such an approach; and 3) how best to implement the plans together with the states under the CWA permit and enforcement programs.  As expected, the memo also devotes significant attention to green infrastructure, noting that such approaches and associated innovations are “important tools that will be fundamental aspects of the integrated waste- and storm-water planning solutions” envisioned by EPA.  Although the memo commits to drafting the framework, the document is silent on any deadlines, timeframes or hard endpoints.  NACWA, and the network of municipal and state organizations that are supporting this effort, will be sending Stoner and Giles a letter applauding this memo but urging some real timeframes for an end product.

Once the draft framework is complete, EPA will be working to set up meetings with stakeholders to gather input. NACWA is already planning an initial, multi-stakeholder meeting for mid-December to provide EPA with feedback on its approach. Additional details on EPA’s effort will be posted on a new website the Agency has dedicated to the initiative and NACWA will alert the membership of any new developments.

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

NACWA’s annual Hot Topics Breakfast, held October 18 during WEFTEC 2011 in Los Angeles, Calif., drew over 80 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 (see story above).  NACWA has advocated for this prioritization 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 (see related story), 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.

Biosolids Management

EPA Announces Planned Revisions to Key Regulation Supporting SSI Rule

EPA announced October 14 that it will make revisions to its final definition of solid waste rule that provides the underlying basis for EPA’s sewage sludge incinerator (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 will release a proposal by the end of November 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 Urges EPA Office of Water to Weigh in on SSI Rule

NACWA staff met with Nancy Stoner, EPA Acting Assistant Administrator for Water, on October 11 to urge her to engage with senior EPA leaders on NACWA’s petition for reconsideration on the sewage sludge incineration (SSI) rule.  The meeting followed a letter  NACWA sent to EPA Administrator Lisa Jackson on September 30, urging her to grant its petition for reconsideration of the final rule and arguing that the Clean Water Act should be the primary statute governing the disposal of sewage sludge – and that the Clean Air Act (CAA) only applies in the limited circumstances that Congress authorized, namely section 112 of the CAA.  Stoner at this point has not been involved in any deliberations about this issue within the Agency but said she would review our materials and consider next steps.  At the same time, NACWA has garnered the support for a bipartisan letter from the U.S. House of Representatives to Administrator Jackson in support of the Association’s SSI position and is close to having a similar bipartisan Senate letter delivered to her as well.

EPA, Sierra Club Oppose NACWA SSI Rule Stay Request; No Ruling on Administrative Petition

Both the Sierra Club  and EPA  filed motions with the U.S. Court of Appeals for the D.C. Circuit on October 11 opposing NACWA’s request for a stay to the final SSI rule.  NACWA filed its response to these motions on October 28 (see NACWA’s Litigation Tracker).  Despite these legal motions, EPA has not yet provided a written decision on whether it will administratively reconsider all, or part, of the SSI rulemaking.  EPA provided a brief response to NACWA’s September 30 letter  to EPA Administrator Lisa Jackson on the issue, indicating that it was still working on the Association’s petition.  NACWA continues to pursue all regulatory and legislative avenues to convince the Agency to agree to the reconsideration.

Climate Change

NACWA Urges Science Advisory Board to Exempt Wastewater Biogenic Emissions from Greenhouse Gas Accounting

The EPA Science Advisory Board (SAB) Expert Panel on Biogenic Carbon Emissions met for the first time October 25-27 to consider the Agency’s draft Accounting Framework for Biogenic Emissions from Stationary Sources .  This panel was formed to make recommendations to EPA about the science involved with accounting for biogenic carbon dioxide (CO2) emissions.  Most greenhouse gas (GHG) accounting methodologies exempt biogenic emissions as part of the natural carbon cycle, including the Intergovernmental Panel on Climate Change (IPCC) methodology that is used by nations around the world to calculate annual GHG inventories for the United Nations.  However, EPA has not exempted biogenic emissions from the GHG Tailoring Rule, which brings facilities under the Title V and Prevention of Significant Deterioration (PSD) permitting programs of the Clean Air Act (CAA) on a tiered basis, beginning with the largest emitters.  Earlier this year, EPA finalized a rule  that defers biogenic CO2 emissions from CAA regulation for three years while the Agency studies the issue.  In response to comments  from NACWA on the proposed rule, the deferral specifically applies to CO2 emissions from the wastewater treatment process, the combustion of biogas, and the combustion of biosolids.

The 18-member SAB expert panel is comprised almost entirely of forestry and agricultural experts.  Although NACWA nominated a wastewater expert, this nominee was not chosen for the panel.  The status of forest and agricultural fuel and waste products dominated the discussion of the panel during their meeting.  Because of the land use, transport, fertilizer, and other issues associated with these products, their use and emissions accounting is a contentious issue between the industries and environmentalists.  Wastewater emissions were not discussed by the expert panel until NACWA raised the issue during a public comment period.  The draft Accounting Framework assigns a “biogenic accounting factor” (BAF) of zero to biogenic emissions from wastewater, which indicates that the CO2 from wastewater treatment and combustion of biogas and biosolids would have been returned to the atmosphere anyway from natural decay processes.  NACWA urged the panel to keep this factor in place.  NACWA emphasized the necessity of treating wastewater to protect public health and the environment and the environmental benefits of using biogas and biosolids for generating heat and electricity.  A panel member asked about the magnitude of biogenic emissions from wastewater treatment facilities.  Although NACWA has collected only preliminary information on biogenic emissions from its members, the Association believes that many utilities would currently be regulated for GHG emissions if biogenic emissions were included.

NACWA followed up on its public statement with written comments  to the SAB panel.  NACWA will continue to gather information on the magnitude of biogenic emissions from wastewater treatment facilities and will follow the work of the SAB panel as it progresses.

Energy-Water Nexus

EPA to Hold Webinar on Opportunities for Combined Heat and Power at Wastewater Treatment Facilities

EPA’s webinar, entitled “Strengthening Critical Infrastructure: Combined Heat and Power (CHP) at Wastewater Treatment Facilities” will be held November 15, from 2:00-3:30 pm Eastern.  According to EPA, this webinar will highlight the role CHP can play in strengthening critical infrastructure at wastewater treatment facilities.  It will feature information on economically viable and technically feasible CHP applications for wastewater treatment plants.  This event will feature experts from EPA discussing the updated report, which NACWA provided comments on, entitled Opportunities for Combined Heat and Power at Wastewater Treatment Facilities:  Market Analysis and Lessons from the Field , as well as system operators of CHP at wastewater plants.  To register for this EPA webinar, click here.

EPA Enforcement

EPA Enforcement Database Includes Interactive Map

EPA has now included an interactive map with its online enforcement database. The map contains federal and state enforcement actions and includes information on violations by facilities of air, water, and waste laws.  “EPA is committed to providing the public with easy-to-use tools that display facility compliance information and the actions EPA and the states are taking to address pollution problems in communities across the nation,” Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance, said in a press release.  The map is intended to increase transparency on enforcement actions, and the agency plans to update the map monthly, EPA said.  The map, which is part of EPA's existing Enforcement and Compliance History Online (ECHO) database, is available on EPA’s website.

Pretreatment/Pollution Prevention

NACWA Seeks Member Input on 2010 Effluent Guidelines Program Plan

EPA published its final 2010 Effluent Guidelines Program Plan   (“ELG Plan”) on October 26.  The preliminary 2010 plan was published on December 28, 2009 and summarized in NACWA Advocacy Alert 10-06.  NACWA submitted comments  on the preliminary plan that supported EPA’s proposal to develop best management practices (BMPs), rather than effluent guidelines, for the disposal of unused pharmaceuticals from health care facilities.  NACWA worked with EPA on the development of the BMPs and the final version of the document is expected to be published soon.

Between issuing the preliminary and final ELG Plan, EPA decided to pursue pretreatment standards for dental facilities, which will involve mandatory installation of dental amalgam separators for all dental offices.  NACWA and its members had many concerns about the potential burdens on wastewater utilities that this rule would impose, and NACWA has provided input to EPA about the rule on multiple occasions.  The final rule is expected to be released in early 2012.

The ELG plan also states that EPA will develop effluent guidelines for the Coalbed Methane Extraction industry and pretreatment standards for the Shale Gas Extraction industry.  The final Plan requests comments on EPA’s 2011 annual review of existing effluent guidelines and pretreatment standards.  NACWA will provide a summary of the Plan in an upcoming Advocacy Alert and will submit comments by the November 25 deadline.  Please send your input for the comments to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by November 15.

Security and Emergency Preparedness

Water Sector Coordinating Council Discuss Upgrades of Vulnerability Assessment Tools

The Water Sector Coordinating Council (WSCC) met with the Government Coordinating Council (GCC) in Washington D.C. on October 26-27 to discuss the direction that utilities and government agencies will take to continue improving the resiliency of wastewater and drinking water facilities.  One of NACWA’s representatives to the WSCC, Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, OH, attended the meeting.  Vulnerability assessment tools were a major topic of discussion.  Earlier this year, a Critical Infrastructure Partnership Advisory Council (CIPAC) workgroup examined the new J-100 Risk and Resilience Management of Water and Wastewater Systems standard that has been approved by the American National Standards Institute (ANSI), and determined how the Vulnerability Self Assessment Tool (VSAT), ARAM-W, and SEMS tools could be updated to help utilities comply with this standard.  EPA and the Department of Homeland Security (DHS) are still compiling information about the cost and technical requirements for updating VSAT and ARAM-W.  Before a decision is made about which tool or tools to upgrade, the WSCC and GCC will consider this information and also evaluate a new open source vulnerability assessment tool that is expected to be available in spring 2012.

The WSCC and GCC examined case studies from drinking water utilities affected this year by the tornado in Joplin, Missouri, and Hurricane Irene.  In all cases, the cooperation of the utility with other emergency response personnel was critical in restoring and maintaining service.  Communication remains a challenging area during emergencies, although utilities have made use of Facebook and other social media to communicate with their customers about disruptions in service and boil water orders.  The WSCC and GCC also learned more about the DHS Enhanced Critical Infrastructure Protection (ECIP) Initiative, which helps utilities to assess and analyze threats and evaluate their security procedures.  Some WSCC and NACWA members have participated in the ECIP and found the feedback given to their utilities to be very useful.  The Protective Security Advisors (PSAs) that administer the ECIP Initiative have also proven invaluable to utilities during emergencies.  The ECIP Initiative will be highlighted during the next meeting of the NACWA Security and Emergency Preparedness Committee, which will take place in the next few months.

Water Quality

NACWA, Municipal and State Groups Urge Support for Key USGS Monitoring Program

NACWA, the Water Environment Federation (WEF), the Association of Clean Water Administrators (ACWA, formerly ASIWPCA), and the Association of Metropolitan Water Agencies (AMWA) met October 13 with Ann Castle, the Department of Interior’s Assistant Secretary for Water & Science, and several other key staff to urge continued and consistent funding for the U.S. Geological Survey’s (USGS) National Water Quality Assessment (NAWQA) Program.  The program has been in place for several decades and provides consistent monitoring of water bodies to determine the levels of key pollutants and contaminants, as well as their pollution sources.  As a result of this effort, USGS has been able to develop its SPARROW modeling tool, which has been invaluable to NACWA in its effort to identify agriculture as a primary contributor to nutrient pollution in the nation’s water bodies.  Although the funding level for the program is quite modest, all Department of Interior and USGS programs are facing across-the-board cuts in the Fiscal Year 2013 budget.  NACWA is doing its best to build support for this vital program.  As states seek to develop and implement nutrient criteria, the need for the type of data provided by the NAWQA program is critical.  The Association will continue to update members on this effort as it proceeds.

NACWA, Municipal Water Groups Meet with EPA to Discuss Top Water Quality  Priorities

NACWA, and other groups representing municipal water interests, met with senior EPA staff from the Office of Water October 13 to discuss a range of priority drinking water and clean water issues.  EPA provided updates on several recent developments including a workshop the Agency held October 5-6 with state water officials to explore the use of biological information in the development and implementation of numeric nutrient criteria.  NACWA, along with state water regulators and other stakeholders, has been pushing EPA to provide the states with more flexibility when developing nutrient criteria – and to reconsider its position that numeric criteria for nitrogen and phosphorus must be developed for all waters and applied independently from any biological assessment information.

During the EPA-state workshop, the Agency heard from more than a dozen states that have already developed sophisticated programs for collecting and evaluating biological information to help them determine protective levels of nutrients for their states’ waters.  EPA staff indicated that these types of biological confirmation approaches could potentially be applied without violating the Agency’s existing policy on independent applicability, though the details of how this would work were not discussed.  The states are now working to develop a summary from the workshop and EPA has already begun discussions on an EPA memorandum that would outline how these types of biological assessment approaches could be used.  It remains to be seen whether EPA will truly embrace a ‘weight of evidence’ approach to implementing numeric nutrient criteria, but the workshop and forthcoming memorandum are positive developments that NACWA has been advocating for over the past decade.

EPA also provided updates to the municipal organizations on its work to develop a general permit for pesticide applications and several drinking water rules, and confirmed its commitment to work on developing an integrated planning/permitting approach to meeting Clean Water Act requirements that would focus on regulatory prioritization.  On the funding front, EPA said it was working to get CWSRF money out the door to states as quickly as possible in order to maximize its role in getting infrastructure work underway.

Wet Weather

NACWA Continues Discussions on SSO Rule with Stakeholder Groups

NACWA resumed discussions on a sanitary sewer overflow (SSO) rule by hosting an October 12 conference call with the environmental organizations that participated in the July 14-15 EPA workshop on SSOs.  The representatives from American Rivers, the Natural Resource Defense Council (NRDC), and other participating organizations expressed their interest in continuing to build toward a consensus on the components of a SSO rule.  With EPA committed to pursuing an integrated wet weather permitting approach – addressing many of the objectives of NACWA’s Money Matters™ draft legislation – NACWA and the environmental groups see this as an opportunity to hold EPA to its stated commitment of moving forward with an SSO rule.  The integrated permitting approach will likely draw on the existing combined sewer and stormwater rule but the lack of an SSO rule will result in significant uncertainty for utilities, making a truly integrated approach more difficult to achieve.

NACWA, the environmental groups, and the other participants in the July workshop, including the Water Environment Federation (WEF) and the Association of Clean Water Administrators (ACWA, formerly ASIWPCA), will hold a series of conference calls to address the issues coming out of the workshop that require further discussion, particularly the compliance standard for SSOs and the use of alternative treatment of peak flows.  NACWA will keep members informed as these discussions progress.