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

NACWA, Stakeholders Send Letter to EPA Offering Input into Integrated Planning/Regulatory Prioritization Framework

NACWA led an effort to encourage fellow organizations to sign on to a letter  sent November 18 to Nancy Stoner, Acting Assistant Administrator for EPA’s Office of Water, and Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement & Compliance Assurance, applauding their initial efforts  to craft an integrated planning framework.  The letter also urges the Agency to develop and stick to an expedited schedule to develop its framework.  The letter thanks EPA for sending the October 27 Memorandum  on Achieving Water Quality through Integrated Municipal Stormwater and Wastewater Plans to EPA’s Regional Administrators and underscores the difficult economic times that municipalities and states currently face in meeting the obligations of the Clean Water Act.  The letter was signed by NACWA, the American Public Works Association (APWA), the American Water Works Association (AWWA), the Water Environment Federation (WEF), the American Society of Civil Engineers (ASCE), and other municipal groups.

NACWA continues to take the lead on providing input to EPA on its integrated planning framework.  EPA will be meeting with NACWA public agency leaders and other representatives of key stakeholder groups in Washington, DC, on December 13.  Nancy Stoner and Cynthia Giles will both be attending the meeting, along with other key EPA policy and enforcement office staff. Meeting participants will provide EPA with policy and technical input into the elements that need to be included in an integrated planning framework going forward.  NACWA plans to help organize similar regional meetings with our members and EPA across the country starting in early 2012 – in line with a series of listening sessions EPA plans to hold on this initiative – to make sure that this effort fully accounts for the municipal perspective.  Advocacy Alert 11-25 provides more details about NACWA’s ongoing efforts to influence the EPA initiative and related activities.

Biosolids Management

Court Places Litigation over EPA’s Solid Waste Rule on Hold

A federal appeals court announced November 1 that it is putting legal challenges to EPA’s non-hazardous secondary material (NHSM) rule, also known as the solid waste definition rule, on hold pending planned revisions to the regulation that the Agency is expected to finalize next spring.  As NACWA has previously reported, EPA announced in mid-October that it was planning to make revisions to the NHSM rule.   As a result of this decision, the U.S. Court of Appeals in Washington, DC, decided to place the current legal challenges to the rule, including one filed by NACWA, in abeyance pending the Agency’s final publication of revisions to the rule, which are due in April 2012.  This means that NACWA’s litigation over the rule, which provides an important regulatory foundation for EPA’s final sewage sludge incineration (SSI) rule, will be placed on hold for the time being.  However, this development in the NHSM rule challenge will not affect the schedule for NACWA’s separate, parallel challenge to the SSI rule, which will continue to advance on its own timeline.  A copy of the court’s order can be found on NACWA’s Litigation Tracking webpage, and NACWA will keep the membership updated on developments.

Clean Water Act Jurisdiction

NACWA Participates in EPA Briefing on Clean Water Act Jurisdiction

NACWA and other groups representing local and state government entities participated in an EPA briefing November 10 following up on the Agency’s recent announcement that the it is working on a formal rulemaking process —  rather than interim guidance —  to further clarify federal jurisdiction under the Clean Water Act (CWA).  The Agency indicated during this meeting that the approach taken in the rule will mirror the approach taken in the draft guidance  (published earlier this year).  The timeline for the rulemaking process is still not clear, but EPA suggested they would begin inter-agency consultation within the next several weeks.  As a result, the draft of the rule would likely be released for public comment in the March-April 2012 timeframe.  NACWA previously commented  on the draft guidance and will track the rulemaking process closely, including submitting additional comments at the appropriate time.  NACWA will keep the membership updated on developments as they occur.

Climate Change

National Action Plan for Managing Water Resources Released by White House

The White House’s Council on Environmental Quality (CEQ) report issued its final National Action Plan: Priorities for Managing Freshwater Resources in a Changing Climate , prepared by the CEQ’s Interagency Climate Adaptation Task Force, which consists of representatives from several federal agencies, including EPA.  The draft report  was released in June, and NACWA provided comments  on the draft.  In its comment letter, NACWA agreed that improved data is needed to improve wastewater utility adaptation to climate change impacts and that  integrated water resources management must be supported and “the best way to accomplish this is through a holistic, watershed-based approach that allows local decisions about the best ways to adapt to climate change and improve water quality.”  In addition, NACWA’s comments encouraged recognition of wastewater as a resource, which includes water reuse, using biosolids for fertilizer, and producing energy with biosolids and biogas.

The final report did not differ substantively from the draft, and NACWA’s recommendation that one of the “Supporting Actions” be expanded to include a comprehensive evaluation of Clean Water Act regulations to better allow for adaptive management of all pollution sources and water supply demands was not incorporated in the final report.  NACWA will continue to follow additional work by the CEQ on climate change adaptation and make recommendations for how adaptation should be included in federal policies.

Facility and Collection Systems

NACWA, Other Stakeholder Groups Plan Path Forward on SSO Policy

NACWA continued discussions on a path forward toward a sanitary sewer overflow (SSO) rule by hosting a November 22 call with stakeholder groups that participated in the July EPA SSO Workshop.  NACWA, the Water Environment Federation (WEF), American Rivers, and the Water Alliance (represented by Paul Schwartz, formerly of Clean Water Action) agreed that progress toward an SSO rule would be best directed through EPA’s current priority of developing an integrated planning/permitting framework for clean water utilities, which the Agency will provide more details about during a December 13 meeting organized by NACWA (see story above).  Resolving some of the issues surrounding SSOs will only benefit the integrated permitting goals of improving water quality and placing priority on the actions that utilities and municipalities can take that would result in the greatest environmental improvements at the most reasonable cost.

After the December 13 meeting, NACWA and the other stakeholder groups will have more information to determine how to best resolve the outstanding SSO issues within the integrated planning/permitting framework.  The stakeholder groups agreed that NACWA and WEF would work together on a plan for addressing the issues, and the plan would then be reviewed by the other stakeholder groups.  Ideally, consensus could be reached and the plan could be endorsed by the groups and forwarded to EPA.  The work already done by NACWA’s SSO Workgroup leading up to the July SSO Workshop will provide a foundation for this future work with WEF and the other stakeholder groups.  The SSO Workgroup and NACWA’s Facility and Collection System Committee will participate in review of the plan as it is developed.

Pretreatment/Pollution Prevention

NACWA Testifies on Role of Pretreatment Program in Shale Gas Fracking

NACWA testified at a November 16 hearing — Hydraulic Fracturing of Shale Beds: Ensuring Regulatory Approaches that Will Help Protect Jobs and Domestic Energy Production — before the House Committee on Transportation & Infrastructure’s Subcommittee on Water Resources & Environment.  Martie Groome, Vice Chair of NACWA’s Pretreatment & Pollution Prevention Committee, and Laboratory & Industrial Waste Supervisor for the City of Greensboro Water Resources Department, N.C., provided testimony  on behalf of NACWA.  The other witnesses were Cynthia Dougherty, Director, Office of Ground Water & Drinking Water, EPA; Jim Hanlon, Director, Office of Wastewater Management, EPA; Michael Krancer, Secretary, Pennsylvania Department of Environmental Protection; Tom Steward, Executive Vice President, Ohio Oil and Gas Association; and Dana Murphy, Chair, Oklahoma Corporation Commission.

The hearing was held in part due to EPA’s recent announcement in its Final 2010 Effluent Guidelines Program Plan  that the Agency would develop national pretreatment standards for hydraulic fracturing (or “fracking”) wastewater being sent to publicly owned treatment works (POTWS) or being directly discharged.  NACWA’s testimony focused on how the pretreatment standards might enable clean water agencies to accept fracking wastewater, while also emphasizing that utilities could develop their own local limits to handle discharges from any industry that does not have national standards set by EPA.  The other witnesses discussed the long safety record of fracking and agreed that there are no known cases of drinking water contamination from the practice.  The questions from the Subcommittee focused mostly on the reasons why EPA has decided to examine this industry for pretreatment standards now, the potential impacts of pretreatment standards and other regulations on jobs and the economy, and the role of the states versus the federal government in the regulation of fracking.  Groome was asked questions about the role of local utilities in treating fracking waste, responding with explanations about how utilities can protect their operations and the environment by either developing local limits for total dissolved solids and other potential contaminants in fracking wastewater or refusing to accept the waste if they are not equipped to treat it.

NACWA gathered member input on EPA’s Final 2010 Effluent Guidelines Program Plan related to fracking wastewater and submitted comments  on the Plan on November 23 (see story below).  NACWA is included in the group of stakeholders that EPA will reach out to when they begin collecting information for development of the pretreatment standard for fracking wastewater.  NACWA will closely follow the development of this standard and will keep members informed of EPA’s progress.

NACWA Comments on EPA’s Final 2010 Effluent Guidelines Plan

NACWA submitted November 23 comments  on EPA’s Final 2010 Effluent Guidelines Program Plan  with recommendations for the dental amalgam and shale gas extraction pretreatment standards that the Agency plans to propose.  NACWA provided a detailed summary of the Final Plan and asked for member input in Advocacy Alert 11-24.   NACWA has provided EPA with input on pretreatment standards for dental amalgam on several occasions during the last year and the Association’s written comments summarize this input.  As stated in the comments, “NACWA’s primary concern is the potential burden to the pretreatment programs that may be required to verify compliance for hundreds of dental offices in their service areas.”  NACWA recommended the use of best management practices (BMPs) rather than numeric limits to help reduce this burden and also emphasized that a new category for dental offices, rather than the current Significant Industrial User or Non-Significant Categorical Industrial User categories, is essential to minimize the POTW burden.

For the pretreatment standard on shale gas extraction wastewater, NACWA reiterated several of the points made in its November 16 testimony before the House Committee on Transportation & Infrastructure’s Subcommittee on Water Resources & Environment (see related story).  Few NACWA members currently accept this type of wastewater, but as the shale gas extraction industry grows, more POTWs may consider accepting the waste.  “Although POTWs have the authority to establish local limits for any waste to prevent pass through of pollutants and interference with utility operations,” NACWA stated in its comments, “a scientifically and economically sound national pretreatment standard for the shale gas extraction industry may provide added and consistent protection to the industry, POTWs, and centralized waste treatment (CWT) facilities by providing a nationally accepted baseline for treatment of shale gas extraction wastewater.”

In the Final Plan, EPA also asked for information on the industrial manufacturing of nanosilver.  NACWA has communicated with EPA about nanosilver on multiple occasions in the past with concerns about consumer products that release silver ions or nanosilver into the sewer system and with recommendations that more data be collected about the impacts of nanosilver on human health and aquatic environment.  Copies of these past communications were included as part of NACWA’s comments on the Final Plan.  NACWA urged EPA’s Office of Water to work with the Office of Pesticide Programs and with the Food and Drug Administration (FDA) to study these impacts and to reduce or prevent nanosilver discharges from both industrial manufacturing and use of consumer products.

NACWA will notify members when the dental amalgam pretreatment standard proposal is released, likely in early 2012, and will host a web meeting of the Pretreatment and Pollution Prevention Committee shortly after the release of the proposal.  NACWA will also keep members informed about new developments in the pretreatment standard for shale gas extraction, progress made in controlling nanosilver discharges, and any other relevant effluent guidelines developments.

Water Quality

NACWA Briefed on Recreational Water Quality Criteria Revisions

NACWA met October 31 with officials from EPA’s Office of Science and Technology in the Office of Water to discuss the latest developments on the Agency’s recreational water quality criteria, last updated in 1986.  While supportive of the general approach EPA has proposed for revising the criteria – leaving the criteria values largely unchanged and maintaining the use of culture-based methods for implementing Clean Water Act (CWA) programs (see Advocacy Alert 11-17) – NACWA expressed concern over EPA’s plans to wait until after the criteria are finalized in October 2012 to develop implementation guidance.  During the meeting, EPA confirmed that it would begin working on implementation issues early next year and that it would publish short, targeted documents addressing several key implementation issues shortly before or just after the criteria are finalized, rather than attempt to develop and publish a single implementation guidance document, which would demand a much longer timeframe.

One of the top implementation concerns for NACWA has been the potential use of test results from the new rapid test method (quantitative polymerase chain reaction or qPCR) for CWA purposes – namely the listing of waters on the impaired waters list, triggering the development of a total maximum daily load (TMDL).  NACWA has raised significant concerns about the reliability of the qPCR method for use in any application other than limited beach monitoring.  While EPA has indicated that it will recommend the use of the older, culture-based test methods for all CWA purposes, EPA will publish criteria values based on both the culture and qPCR methods.  NACWA has highlighted in previous communications that where states choose to include criteria based on qPCR in their water quality standards, beach management decisions using only qPCR data may lead to an impaired water determination with real CWA implications.  EPA has committed to looking into this issue further and indicated that use of qPCR data will be one of the implementation issues it addresses first.  The draft criteria will be released in early 2012 and EPA will provide 60 days for input and comment.

NACWA Highlights Concerns with EPA’s Pending Ammonia Criteria Revisions

NACWA wrote Ephraim King, director of the Office of Science & Technology in EPA’s water office this week to underscore the importance of using valid science as the Agency moves forward with revisions to its recommended water quality criteria for ammonia.  NACWA’s November 10 letter  was in response to a November 2 meeting with King and key staff on the pending revisions.  The letter outlined the Association’s lingering concerns about the use of nuisance invasive species data for the calculation of the final criteria values.  NACWA also stressed the major impacts the revisions will have on the clean water community and the importance of providing sufficient guidance to the states on how the criteria can be recalculated to better account for the species present in particular water bodies.

In calculating the revised criteria, EPA has amassed a large database on the effects of ammonia on different aquatic organisms.  Included on its list of most sensitive species are data for two invasive species.  NACWA has argued previously in its comments  on the draft criteria that inclusion of data for invasive species is not appropriate.  While EPA noted during the meeting that it believes the use of invasive species data, as a surrogate for an indigenous species, is appropriate, the Agency has not provided evidence that such a linkage exists in this case.  EPA initially proposed in 2009 to develop bifurcated criteria, with the criteria level dependent on whether certain freshwater mussels were present in the water.  EPA has abandoned that approach and now plans to recommend a single value for each effect level, acute and chronic.  A state will be able to modify the criteria values it adopts into its water quality standards to better reflect the species and uses it is trying to protect, but NACWA had advocated strongly for the bifurcated criteria approach at the federal level.

The current (1999) criteria (at pH 8 and 25°C; in mg/L of total ammonia nitrogen) are 5.6 acute and 1.2 chronic.  The new criteria values expected to be released in early 2012 are 3.2 acute and 0.28 chronic.  These levels are slightly less stringent then the ‘mussels present’ criteria in the 2009 proposal, but significantly more stringent than the criteria that would have applied under the 2009 proposal where freshwater mussels were not present.  EPA has already acknowledged that such a reduction in the criteria will have significant impacts on the clean water community.  EPA intends to release the criteria along with a guidance containing information on the existing tools available to state regulators to assist in implementation, including variances, use attainability analyses, compliances schedules, and dilution allowances.

NACWA will continue to highlight its lingering concerns with the criteria revisions for senior EPA management, which is currently reviewing the draft criteria, to ensure the underlying data issues are addressed and to encourage EPA to provide the states with sufficient guidance and information to assist with implementing the criteria.