August-September 2012 Regulatory Update

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To:	Members & Affiliates
From:	National Office
Date:	September 26, 2012

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August/ September 2012 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of September 2012. 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 with any questions or information on the Update topics.

Top Stories

NACWA Raises Concerns with the Potential Impact of New Data on EPA’s Proposed Recreational Water Quality Criteria

NACWA met with Betsy Southerland, director of the Office of Science & Technology (OST) in EPA’s Office of Water, and key staff September 4 to discuss in more detail the additional analyses the Agency is conducting to determine whether existing epidemiological data could support lower (more stringent) recreational water quality criteria values (than those proposed in December 2011). EPA received significant comment questioning whether the Agency had used all of the data it had available at the time of the proposal. Agency staff are redoubling their efforts to look at the data from EPA’s National Epidemiological & Environmental Assessment of Recreational Water (NEEAR) study in new ways to see how they may inform the final criteria values.

Members of NACWA’s Water Quality Committee participated in the call and sought clarification on the statistical procedures being used to evaluate the data, among other details. EPA is evaluating different levels of water quality – the proposed geometric mean level for marine waters is 35cfu of Enterococci per 100mL of water – to determine if the NEEAR data would support a lower geometric mean. NACWA has submitted several follow-up questions to EPA on the new data analysis and will be developing a letter to top Office of Water officials outlining its concerns. The deadline for publication of the final criteria was October 15, 2012, but the Agency was granted a six-week extension to November 30, 2012.

NACWA, ACWA to Co-Convene Region 3 Workshop on Integrated Planning

NACWA and the Association of Clean Water Administrators (ACWA) will be hosting an Integrated Planning Workshop in Washington, DC, on October 24, seeking to bring Region 3 clean water agencies, state and federal regulators and enforcement officials – as well as key experts – together to discuss integrated planning in both the permitting and consent decree contexts. A draft agenda for the Workshop is now available. The Workshop will serve as a pilot to determine how best to proceed with similar workshops in other key regions. It will provide the opportunity to explore how communities are benefitting from EPA’s integrated planning framework – and provide important information on the hurdles or barriers that may stand in the way of implementing the framework from the perspective of all key stakeholders. Pennsylvania, Maryland and Virginia state officials have already confirmed their participation as have EPA Region 3 officials. EPA Headquarters leaders on this issue from the Office of Water as well as the Office of Enforcement & Compliance Assurance (OECA) are also confirmed to participate. Region 3 member agencies interested in participating or other NACWA members interested in observing should contact Chris Hornback at chornback@nacwa.org.

Air Quality

NACWA Provides Comments, Participates in Meeting on Study of Siloxane Impacts

NACWA submitted comments September 18 as an interested party in the enforceable consent agreement (ECA) negotiations involving the collection of environmental monitoring data for two siloxanes, octamethylcyclotetrasiloxane (D4) and decamethylcyclopentasiloxane (D5). Siloxanes are used in the manufacturing of many personal care products, including makeup, and often cause problems for clean water utilities that use biogas from anaerobic digestion to generate power. NACWA has been participating in the ongoing ECA discussions about these two siloxanes, including negotiations over the number of wastewater treatment plants that should be included in a data collection effort to evaluate the impacts of these chemicals in the environment. NACWA’s comments provide a rationale for its recommended number of treatment plants in the sampling effort and detail the costs associated with siloxane removal at utilities utilizing biogas. NACWA and member representative Patrick Griffith of the Los Angeles County Sanitation Districts participated in the latest ECA meeting September 20, during which how many POTWs to sample and the factors to consider when choosing these POTWs were again discussed in depth. EPA has continued to propose using population served as a primary factor for choosing POTWs, while NACWA and other interested parties maintain that influent siloxane concentrations will likely not depend on population, but on other factors such as industrial contributions and dilution from stormwater and infiltration. The Agency is considering the written comments and this week's discussion, and the negotiations will continue in the next few weeks.

Conferences and Meetings

WEFTEC Events to Focus on Utility Leaders

NACWA and the Water Environment Federation (WEF) are collaborating to bring you the Utility Leaders Morning during WEFTEC 2012 in New Orleans. So make your plans to attend the NACWA/WEF Hot Topics Breakfast, Tuesday October 2 in the Convention Center. The breakfast meeting will feature updates from senior EPA officials from the Office of Water and Office of Enforcement & Compliance Assurance on the latest regulatory developments. Betsy Southerland, Director of the Office of Science & Technology; Randy Hill, Acting Director, Office of Wastewater Management; Deborah Nagle, Director of the Water Permits Division in the Office of Wastewater Management; Jeff Lape, Deputy Director of the Office of Science & Technology; Denise Keehner, Director, Office of Wetlands, Oceans & Watersheds; and Loren Denton, Chief, Municipal Enforcement Branch, Water Enforcement Division, have already confirmed their participation. The EPA staff will also be available to answer your questions. Breakfast will be available at 7:30am and the program will begin at 8:00 am. We invite you to RSVP today.

In addition to the Hot Topics Breakfast, the morning of October 2 will also feature a Utility Executives Forum that will provide an opportunity for utility executives and invited guests to discuss management and leadership issues. The 2012 Utility Executives Forum will focus on opportunities for transformational change for water utilities and the sector broadly. The Forum begins at 10:00 am, just down the hall from the breakfast. Utility executives interested in attending the Forum should RSVP directly to WEF’s Arika Lawrence at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Pretreatment/Pollution Prevention

NACWA Provides Input on Review of Root Control Chemical by EPA’s Pesticide Office

NACWA submitted comments September 7 on EPA’s registration review for the herbicide and root control chemical dichlobenil. The Association has continued to weigh in on key EPA actions regarding the regulation of pesticides over the past several years given the potential for these chemicals to interfere with the wastewater treatment process – and the difficulty in controlling their discharge. NACWA is particularly interested in the registration review for dichlobenil given its use as an effective root control chemical in wastewater collection systems. NACWA’s comments stressed that EPA should strike the right balance during its registration review by identifying risk management strategies that will allow for dichlobenil’s continued use, while protecting wastewater collection system workers, wastewater treatment operations, and the nation’s receiving waters.

NACWA Recommends Broader Study of Nanosilver Impacts During Registration Review

NACWA submitted comments

September 10 on EPA's registration review, under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), for nanosilver, which is used in products for its anti-microbial properties. NACWA has been actively following issues relating to nanosilver over the last few years given the potential for discharge to the sewer system from a variety of nanosilver products. While little is known about the fate and effects of nanosilver, the clean water community is acutely aware that forms of silver can be toxic to aquatic life and can prevent utilities from recycling their biosolids. NACWA’s letter underscored that while clean water agency pretreatment programs have been specifically designed to ensure that discharges of silver particles are minimized or eliminated, such programs do not have authority to control discharges of pollutants from domestic sources where products containing nanosilver are now increasingly common. EPA has acknowledged that data gaps are impeding its ability to complete a thorough assessment and evaluation of nanomaterials, and NACWA recommended that EPA use the registration review process to fill these gaps for nanosilver before the Agency approves any additional products for use. NACWA also urged EPA to evaluate all uses of nanosilver, not just use in textiles, for potential environmental exposures and impacts on the treatment process. NACWA’s letter also expressed support for the more detailed comments submitted by the Bay Area Clean Water Agencies (BACWA).

Security/Emergency Preparedness

NACWA Participates in Department of Defense Emergency Response Seminar

NACWA staff and member representative Carol Adams, Senior Systems Analyst/Disaster Recovery-Business Continuity Coordinator for ALCOSAN, attended a Department of Defense (DOD) seminar on the Defense Support of Civil Authorities (DSCA) in August. The DSCA provides support to civil authorities in dealing with emergencies, such as natural disasters and terrorist attacks, when requested by government entities. This seminar provided information to DOD and other federal, state, and local agency officials about the planning, coordination, and execution of DSCA operations for emergencies. One of the DSCA missions is protection of critical infrastructure, including water and wastewater utilities. Information about wastewater operations may be particularly relevant to the DOD’s chemical, biological, radiological, and nuclear (CBRN) response capabilities, since decontamination wastewater must be handled appropriately to prevent problems at treatment plants and prevent additional hazards to human health and the environment. NACWA plans to participate in future DSCA seminars and related activities to provide information about wastewater operations and ensure that appropriate communication channels exist between water sector utilities and the DOD for emergency response.

Water Sector Coordinating Council Discusses Mutual Aid Networks

During its quarterly meeting in August, the Water Sector Coordinating Council (WSCC) focused on the progress and issues of Water/Wastewater Agency Response Networks (WARNs). NACWA’s representatives, Patty Cleveland, Assistant Regional Manager, Northern Region, of 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, participated in the web meeting. WARNs are intrastate mutual aid and assistance networks, which are organized by utilities and state and local governments to provide rapid deployment of emergency services to restore critical water and wastewater operations. WARNs have been a very successful emergency response method, but some challenges remain in their implementation, including the ability to cross state lines when the nearest or most appropriate assistance for a utility needing aid is in an adjacent state. The WSCC identified WARNs as a potential item of focus for the Roadmap to a Secure & Resilient Water Sector, a document that a WSCC workgroup is currently updating (see the August 17 Clean Water Current for more information).

The WSCC also learned that EPA has decided in favor of the Council’s recommendation to update VSAT (a NACWA-developed vulnerability-assessment tool) to comply with the J-100 Standard for Risk and Resilience Management of Water and Wastewater Systems. A new, open-access vulnerability assessment tool is also being developed by AEM Corporation, and this tool will also be J-100 compliant. The WSCC and NACWA will follow EPA’s progress on this VSAT update, and will let members know when it is available for utility use.

Stormwater

NACWA Participates in White House Conference on Green Infrastructure

A large contingent of NACWA utility members participated in a Sept. 20 conference hosted by the White House Council on Environmental Quality (CEQ) and EPA to explore the use of green infrastructure in managing stormwater and urban wet weather flows. The conference brought together key stakeholders from the utility, engineering, environmental/conservation communities, and the public sector, to examine both the opportunities and challenges facing green infrastructure – as well as how to better encourage and implement it as a viable stormwater management approach. Conference participants engaged in robust discussion focused on defining the range of benefits of green infrastructure practices; identifying barriers to these practices; finding opportunities for funding, financing and valuing green infrastructure; and developing steps that government and others can take to promote greater implementation of green technologies to manage urban stormwater.

The municipal clean water utility community had a strong voice throughout the day’s discussions, ably represented by a number of NACWA members pursuing a variety of innovative green infrastructure solutions. Among the NACWA utility members present were the New York City Department of Environmental Protection, the Philadelphia Water Department, DC Water, the City of Los Angeles Bureau of Sanitation, the Northeast Ohio Regional Sewer District, the Metropolitan Water Reclamation District of Greater Chicago, the Metropolitan Sewer District of Greater Cincinnati, Onondaga County, NY, and the Milwaukee Metropolitan Sewerage District. Conference participants also heard from senior CEQ and EPA leadership, including Nancy Sutley, Chair of CEQ; Bob Perciasepe, EPA Deputy Administrator; Nancy Stoner, EPA Acting Assistant Administrator for Water; and Cynthia Giles, EPA Assistant Administrator for Enforcement & Compliance Assurance.

The Association was part of a planning committee that assisted CEQ and EPA in developing the conference, and is pleased so many utility representatives were invited to take part in the event. CEQ and EPA will be sharing the outcomes and recommendations from the conference later this year via a conference report or white paper, and NACWA looks forward to working with them to help shape that document.

NACWA, EPA Discuss Post-Construction Stormwater Rule

NACWA discussed EPA’s continued work on a new national post-construction stormwater rule with key Office of Water staff in early September. EPA recently announced a revised date of June 2013 for release of a draft rule and public comment, and NACWA requested the meeting to receive an update on the rule’s current status. EPA staff indicated that they continue to work on the proposal and that – from a substantive standpoint – the major elements of the rule have not changed from those previously discussed with NACWA and the public. Most notably, the rule proposal is still expected to include an expansion of current federal stormwater jurisdiction; new performance standards for new development and redevelopment projects to require on-site retention of stormwater; and, a potential urban retrofit requirement to reduce areas of existing impervious surface. EPA continues to work on cost/benefit analyses for the new development/redevelopment performance standards and retrofit components. Agency officials indicated that these analyses have been difficult given the nature of the rule – particularly for retrofits – and suggested that the outcome of the analyses could impact whether some planned elements are ultimately included in the rule proposal.

Agency staff also indicated that EPA will need to complete its final “options selection” process for the rule by late this year in order to meet its June 2013 deadline, with the draft rule likely going to the Office of Management & Budget (OMB) for interagency review in late February. EPA anticipates sending a Report to Congress on the national stormwater program before the draft rule is publicly released, although the exact timing of the Report is still unclear. NACWA will continue to track EPA’s efforts over the coming months and will keep the membership updated.

Water Quality

Federal Court Denies Permit Challenge Involving Controversial Nutrient Limits, NACWA Joins Plaintiffs in Seeking Rehearing

A federal appeals court issued a ruling

August 3 in litigation over federally imposed nutrient requirements in a municipal National Pollutant Discharge Elimination System (NPDES) permit, denying a utility challenge and upholding EPA’s nutrient limits. The First Circuit Court of Appeal’s decision in Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA found that EPA is entitled to significant deference when establishing permit discharge limits, even where there may be existing uncertainty regarding the data and modeling for water quality in the receiving waterbody. The court noted that EPA is entitled to exercise its judgment when setting permit limits in the face of scientific uncertainty, and that courts should not second-guess this judgment as long as the Agency follows proper procedure and acts with a reasonable basis. The court further concluded that EPA’s actions in the current case were reasonable and justified, and thus upheld the challenged permit and nutrient limits.

NACWA filed a brief

September 21 urging the court to reconsider its decision. The Association’s brief supports a Petition for Rehearing filed September 14 by UBWPAD, and argues reconsideration is necessary because the original ruling wrongly decided two questions of significant national importance to municipal clean water utilities. First, the brief contends the court incorrectly found that EPA and other permitting authorities must issue new discharge permits under the Clean Water Act every five years. The brief points out that current regulations allow for continuance of expired permits where necessary for a variety of reasons, and that the ability to administratively continue permits is critical to the effective operation of the permitting system. Second, the brief argues the court misinterpreted EPA’s regulation on how permitting authorities derive numeric permit limits based on narrative water quality standards. Since this is the first federal appellate court to examine this issue, the brief highlights the importance of making sure the court’s decision is correct.

NACWA Offers Information/Data as EPA Considers NRDC Nutrient Petition Response

Federal litigation over EPA’s failure to respond to the Natural Resources Defense Council’s (NRDC) petition to modify secondary treatment to include nutrient removal is now on hold. Though the parties did not settle the case, EPA and NRDC did agree to put the lawsuit on hold to allow time for the Agency to develop a response to the petition. EPA has committed to issuing a response by December 14, 2012. NACWA’s Board approved intervention in the lawsuit earlier this year, but with the case in abeyance intervention at this point is not necessary. Attention now turns to the technical staff at EPA who must work to craft a response to the petition together with EPA’s attorneys. In early September, NACWA met with EPA staff to reiterate that the Association’s previous positions, including the legal and technical rationale for the Agency to deny the petition, remain valid today – nearly five years after the petition was filed in November 2007. NACWA also offered to provide EPA information, including cost estimates, information on the performance of secondary treatment, and any nutrient data its members are willing to share, to assist the Agency in developing a response to the petition. The Agency is providing few details on its next steps, but NACWA will continue to work through its Water Quality Committee to track the Agency’s efforts and weigh in as necessary with additional information.

EPA to Meet with NACWA on Water Quality Trading Issues

In response to a letter

that NACWA’s Water Quality Trading Working Group sent to the Agency in July, EPA has scheduled a meeting with the Association to discuss how to move forward on the water quality trading front. NACWA’s letter urged EPA to revise its 2003 Water Quality Trading Policy, and recommended a series of clarifications to the Policy that would encourage greater market formation and broader market participation, especially from nonpoint sources. Most notably, NACWA cited its concerns that EPA’s Policy appears to focus primarily on linking water quality trading to implementation of total maximum daily loads (TMDLs). While it is unclear whether EPA plans to update the trading policy in the near future, NACWA is encouraged by EPA’s interest in discussing these issues. The Association will provide a summary of the October 12 meeting in the next Regulatory Update.

Gulf of Mexico Hypoxia Task Force Launches New Monitoring Efforts to Track Water Quality Improvements

The Mississippi River/Gulf of Mexico Watershed Nutrient (Hypoxia) Task Force announced in early September that it was launching two new efforts to monitor reductions in nutrients throughout the watershed. The joint federal, state and tribal task force, chaired by EPA and the State of Iowa, has established the Mississippi River Monitoring Collaborative to evaluate progress toward reducing the amount of nutrients entering local waterways and ultimately to the Gulf of Mexico. The U.S. Department of Agriculture (USDA), a member of the Task Force, is also preparing to update its technical standard for water quality monitoring to better measure the amount of nutrients coming from farm fields.

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