| To: |
Members & Affiliates, Legislative and Regulatory Policy Committee |
| From: |
National Office |
| Date: |
June 3, 2013 |
The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of May 2013.
Top Stories
NACWA Aggressive in Oral Arguments over Sewage Sludge Incineration Rule
Oral arguments were held May 3 in NACWA’s litigation challenge to EPA’s sewage sludge incineration (SSI) rule, with the Association aggressively challenging EPA’s legal basis for its new SSI regulations. As the lead petitioner in the case, NACWA led off the arguments with a strong challenge to EPA’s statutory authority for the rule, contending that EPA promulgated it under the wrong section of the Clean Air Act (CAA). NACWA argued that a clear reading of the CAA, along with key language from the Clean Water Act (CWA), demonstrates that sewage sludge incinerators (SSIs) are part of the statutory definition of a ‘publicly owned treatment works’ (POTW), and that Congress intended all emissions from POTWs – including SSIs – to be regulated under a more flexible provision of the CAA.
While the court did not seem persuaded by NACWA’s statutory arguments, there was significant interest in NACWA’s arguments regarding technical flaws in EPA’s rules, suggesting that the court may remand – and possibly even vacate – the rule based on these technical arguments. NACWA is hopeful for a ruling from the court within the next 3-4 months. Additional background information on the case is available on NACWA’s Litigation Tracking webpage. NACWA will keep the membership updated on any developments.
Contact: Nathan Gardner-Andrews at 202/833-3692 or
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EPA Seeks Rehearing of Federal Court Decision on Blending
EPA filed a request for rehearing  May 9 with the U.S. Court of Appeals for the Eighth Circuit, asking the court to review its recent decision that invalidated key elements of EPA’s current approach to regulating wastewater blending. The Eighth Circuit’s March 25 ruling in Iowa League of Cities v. EPA, made by a 3-judge panel of the court, invalidated certain EPA actions to limit the use of blending as both procedurally and substantively illegal (see March 29 Clean Water Current for additional details) and marked an important legal victory for the clean water community.
EPA’s request for the decision to be reviewed by the full Eighth Circuit argues that the original ruling is legally flawed and conflicts with decisions from other federal courts. The primary thrust of EPA’s argument is procedural in nature, arguing that the contested Agency actions in the case do not qualify as “promulgation” of binding regulatory requirements or as “final” agency action that justify judicial review. However, EPA also attacks the court’s substantive ruling that the Agency’s efforts to regulate blending by applying secondary treatment limits within the POTW are illegal under the CWA. There is no required timeframe in which the court must act on EPA’s request, so NACWA will continue to track the case and alert the membership when there is a decision.
Contact: Nathan Gardner-Andrews at 202/833-3692 or
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Climate and Energy
Biogenic Emissions Coalition Meets to Refine Strategy
NACWA met twice in May with other members of the Biogenic CO2 Coalition to discuss possible strategies with both Congress and EPA to exclude short cycle carbon dioxide (CO2) emissions from Clean Air Act permitting programs. EPA did not exclude these emissions when it began regulating greenhouse gas (GHG) emissions in 2011, although biogenic emissions are considered part of the natural carbon cycle. Without an exclusion, the CO2 emissions from the wastewater treatment process, as well as combustion of biosolids and biogas, will be subject to Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) and Title V permitting programs. These emissions are currently deferred from permitting programs through July 2014.
The Coalition is drafting a petition for rulemaking and an accompanying technical report to submit to EPA later this year. The advocacy strategy will be refined when a decision is made in Center for Biological Diversity, et al. v. EPA (see April 12 Clean Water Current article for more information), which will determine if the current deferral will stand or be struck down. Depending on this decision, the Coalition may need to seek Congressional action to prevent inclusion of biogenic emissions in CAA permitting programs.
Contact: Cynthia Finley at 202/533-1836 or
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Meetings and Conferences
NACWA Holds Successful Pretreatment & Pollution Prevention Workshop
Over 160 pretreatment professionals convened May 21-24 at NACWA’s 2013 National Pretreatment & Pollution Prevention Workshop featuring sessions with key EPA regulatory staff and discussions on emerging trends in pretreatment programs across the country.
A highlight of the Workshop was a presentation from Rob Wood, Director of the Engineering & Analysis Division in the EPA Office of Water’s Office of Science & Technology, about recent and ongoing effluent limitation guidelines development, including the dental amalgam separator rule. Although a rule has been drafted for over a year, EPA has not proposed it yet and no timeline was suggested. Wood met with leaders of NACWA’s Pretreatment and Pollution Prevention Committee to discuss the draft rule, and also attended the Committee meeting at the Workshop to listen to additional input from Committee members. The Committee communicated to Wood that utilities that already have dental amalgam separator programs are satisfied with how their programs are functioning and do not need or want a federal rule to change their programs. Utilities without programs in place believe that their resources would be better used on more urgent issues.
All the handouts and presentations from the Pretreatment Workshop are available on NACWA’s website, and NACWA thanks all the participants for making this year’s Workshop a success.
Contact: Cynthia Finley at 202/533-1836 or
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Plan to Attend 43rd Annual Meeting and 2013 Summer Conference
We look forward to seeing you in Cincinnati, July 14 - 17 for Managing & Financing the Resilient Clean Water Utility. The 2013 Summer Conference agenda will look at the management and financing approaches utilities are putting into place as they work to establish a more resilient business model founded on integrated financial and management practices, systems and processes. Conference sessions will explore this expanding innovation in utility management, as well as the changing landscape of municipal bond and rate-based financing.
A detailed agenda and other information on making your plans are available on NACWA’s website. The Hilton Cincinnati Netherland Plaza is offering a room rate of $160 per night (single/double), plus applicable taxes. Reservations must be made by Monday, June 21, 2013, to receive the special rate. To ensure a hotel room, contact the Hilton Cincinnati Netherland Plaza at 513.421.9100 and be sure to identify yourself as a NACWA attendee. We hope to see you there.
Security and Emergency Preparedness
Water Sector Coordinating Council Discusses Cybersecurity; Workgroup Maps Security Priorities
The Water Sector Coordinating Council (WSCC) held its quarterly meeting on May 6 via webinar to discuss recent and upcoming activities related to security and resiliency of drinking water and wastewater utilities. NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and a NACWA Board member and Vice Chair of the WSCC, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, both participated in the meeting. The meeting focused on cybersecurity and the work initiated by the February 12 Executive Order (EO) and Presidential Policy Directive 21 (PPD-21), which aim to improve the cybersecurity of the nation’s infrastructure. More background information on the EO and PPD-21 is available in NACWA’s Advocacy Alert AA 13-04.
The Department of Homeland Security (DHS) has convened eight working groups to provide recommendations for completing the requirements of the EO and PPD-21. Staff from the WSCC associations participated in these working groups and provided status reports to the Council. The Council also discussed recent events that have not had serious consequences, but that demonstrate the cyber vulnerabilities of the sector and the need for utilities to improve their cybersecurity. The WSCC will meet again in August, and will be monitoring the work related to EO and PPD-21.
Contact: Cynthia Finley at 202/533-1836 or
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Utility & Resource Management
2012 NACWA Index Finds that Sewer Charge Increases Again Outpace Inflation
The results from NACWA’s 2012 Service Charge Index survey are now available. The Index shows that for the eleventh straight year the increase in the average cost of wastewater services for a single-family residence has outpaced the rate of inflation, as measured by the Consumer Price Index (CPI). The 2011-2012 increase is, however, the lowest in more than 10 years, during which time average residential charges increased an average of 5.6 percent per year. In 2012, the average service charge increased by only 2.8 percent, while inflation increased by 2.1 percent over the survey period, with the average single family’s annual cost for wastewater services topping $410. In addition to the national summary report, a breakdown of results by EPA Region is also now available.
Contact: Chris Hornback at 202/833-9106 or
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Water Quality
NACWA Supports Proposed Approach for Nutrient Criteria in Ohio
Stressing the importance of linking numeric criteria to water quality impacts and designated uses, NACWA submitted comments on May 22 in support of Ohio EPA’s proposed approach to developing a control strategy for nutrients. Ohio EPA’s proposal would utilize the wealth of water quality information the state has collected over the last decade to strike “the right balance in controlling nutrient discharges relative to impacts on designated uses.” The state is proposing a weight of evidence approach that uses a multi-metric scoring system (the Trophic Index Criterion or “TIC”) to determine impairment of streams and rivers.
Ohio EPA’s weight-of-evidence approach, which uses both stressor variable information (e.g., numeric values for nitrogen and phosphorus) and response variable information that reflects actual waterbody impacts, will better account for the varying impacts nutrients can have on different waterbodies. NACWA stressed that key details of the proposal, including how it would be implemented and potential impacts on clean water utilities, were still of concern and that the state should engage the clean water community throughout the rulemaking process to ensure that these issues are appropriately addressed. It is anticipated that a draft rule will be released later in 2013.
Contact: Chris Hornback at 202/833-9106 or
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NACWA Continues Legal Advocacy in Mississippi River Nutrients Case
NACWA participated on a reply brief filed May 10 in litigation over nutrient regulation for the Mississippi River Basin (MRB), supporting EPA’s decision to deny an activist petition requesting federal numeric nutrient criteria (NNC) for the entire MRB. The joint intervenors’ brief in Gulf Restoration Network v. EPA, submitted by NACWA and a number of other organizations supporting EPA’s petition denial, responds to arguments from the activist plaintiffs in support of the legal challenge. The NACWA/intervenors brief defends EPA’s denial of the NNC petition, and argues that the plaintiffs have failed to demonstrate that federal NNC are necessary for the MRB. In particular, the brief highlights a concession by the plaintiffs that they have failed to demonstrate any necessity for federal NNC in the MRB. Additionally, the brief contends that EPA’s petition denial was both procedurally and statutorily valid and that the plaintiffs’ claims to the contrary are not valid. The filing is consistent with previous positions taken by NACWA and others in the case, encouraging the court to uphold EPA’s original denial of the federal NNC petition and dismiss the legal challenge.
A copy of the brief is posted on the Litigation Tracking section of the NACWA’s website, where additional information on the case can also be found. Briefing in the case is now complete, and NACWA will await a ruling from the court. NACWA will keep the membership updated on any developments.
Contact: Nathan Gardner-Andrews at 202/833-3692 or
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NACWA Voices Concern with EPA’s Draft Rivers and Streams Assessment
On May 9, NACWA submitted comments on EPA’s National Rivers and Streams Assessment 2008-2009 Draft (Draft NRSA). Released in February, the Assessment surveyed the condition of the nation’s major rivers and streams based on statistical survey techniques that measured “key stressors” such as nutrients and sedimentation. The Assessment found that 55 percent of the nation’s rivers and streams are in “poor” overall biological condition. Phosphorus and nitrogen levels were surveyed and deemed to be “high” in 40 percent and 27 percent of these waterbodies respectively. Due to flaws in the “reference-condition-based approach” used to measure and assign condition classes to streams and rivers, NACWA has serious concerns with EPA’s conclusions.
The Draft NRSA reference site selection attempted to identify “least disturbed” stream and river reference sites that, when compared to similar stream lengths, determined their ecological health. In the way EPA selected its reference streams, the stream lengths being evaluated were more likely to exceed the low stressor levels in those reference streams. This results in many healthy streams and rivers being incorrectly deemed in poor condition and the Draft NRSA improperly concluding that a very small percentage of rivers and streams are in “good” condition.
NACWA believes that by adjusting the methodology, the outcomes of the Assessment would have shown more accurate results that reflect 40 years of our members’ commitment to water quality.
Contact: Brenna Mannion at 202/533-1839 or
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NACWA Raises Concerns with EPA Review of Triclosan Use
NACWA submitted comments May 28 on a draft work plan for EPA’s review of triclosan as a registered pesticide under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). NACWA has weighed in on triclosan issues a number of times in the past given the frequency with which triclosan is detected in both wastewater effluent and biosolids. NACWA members continue to express concerns over the potential environmental impacts of triclosan in wastewater and biosolids and the potential of triclosan to harm the micro-organisms used to treat wastewater. Though triclosan is not currently subject to Clean Water Act regulation, its presence in wastewater may contribute to failure of whole effluent toxicity (WET) tests, resulting in substantial costs for utilities. NACWA’s comments on the registration review focused on the need for a more comprehensive evaluation of the uses of triclosan and exposure pathways under FIFRA than currently outlined in the draft work plan. As the Association has done in the past, NACWA’s May 28 letter also stressed the need for a more coordinated federal effort to evaluate all triclosan uses, including those not covered by FIFRA.
Contact: Chris Hornback at 202/833-9106 or
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New USGS Maps Show National Trends in Pesticide Use
The U.S. Geological Survey (USGS) released a national assessment this month showing the geographic distribution and trends of pesticide use on the nation's agricultural lands over the past two decades. Developed for national and regional water-quality assessments, the maps, part of the Pesticide National Synthesis Project, show the use of 459 pesticides for each year from 1992-2009 and are accompanied by graphs with annual national use by major crop for each product. Available for the first time, this type of national data will be helpful in addressing water quality challenges on a watershed based-scale, and shows the continued need for closer ties between the agricultural community and municipalities in addressing these issues. NACWA is pleased to see this important information released and is committed to pursuing strong relationships with the agricultural community to address watershed challenges.
Contact: Chris Hornback at 202/833-9106 or
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Wet Weather
NACWA Applauds Proposed Consent Decrees with Integrated Planning Approach
NACWA submitted comment letters on May 24 in support of two proposed municipal wet weather consent decrees which endorse an integrated planning approach. The two proposed decrees for Seattle, Wash. and King County, Wash. , both NACWA members, include innovative language allowing for the development, by both communities, of an integrated plan to more holistically address sewer overflow and stormwater issues. If approved by EPA, these plans could also alter the obligations under the decrees, providing the communities with more flexibility and control over how terms are ultimately met. NACWA’s letters express support for the integrated planning approach, and commend the utilities, EPA, and the U.S. Department of Justice for developing such innovative proposed agreements. The letters note NACWA’s lead role in advocating for integrated planning and the importance of providing communities with additional flexibility on wet weather issues. In particular, NACWA highlights the vital environmental, economic, and social benefits that integrated planning can provide to the citizens of Seattle and King County, while also ensuring tangible water quality benefits.
The letters acknowledge other important elements in the proposed decrees as well, including the ability to revise sequencing of projects under certain conditions; extend decree deadlines due to adverse changes in financial circumstances; and pursue innovative approaches to green infrastructure and capacity, management, operation, and maintenance (CMOM) issues. NACWA believes these decrees can serve as valuable models going forward for other communities and utilities seeking to include similar language in future wet weather enforcement actions. Copies of the letters are available on the Combined/Sanitary Sewer Overflows issue page on NACWA’s website.
Contact: Nathan Gardner-Andrews at 202/833-3692 or
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EPA Releases Report on Emerging Technologies for Wastewater Treatment and In-Plant Wet Weather Management
EPA’s Office of Wastewater Management released an update to its 2008 report on municipal wastewater treatment technologies this month. The Emerging Technologies for Wastewater Treatment and In-Plant Wet Weather Management report is intended as a resource for municipal wastewater treatment system owners and operators on emerging treatment and in-plant wet weather management technology options. It identifies cost effective, innovative, and emerging technologies, as well as established technologies with innovative applications. Technical and cost data are provided for over 30 innovative technologies. While the technology options apply to all treatment processes (physical, biological, disinfection, etc.), the report also addresses technologies with process monitoring and energy conservation applications. Those interested in specific advanced wastewater treatment or management of in-plant wet weather flows, or who have used the previous report as a reference in the past, may find this update to be a useful resource.
Contact: Brenna Mannion at 202/533-1839 or
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