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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2014 Regulatory Update.  This Update provides a summary of relevant regulatory issues and actions from September 2014.

Top Stories

EPA Proposes Dental Amalgam Separator Rule

After several years of delays, EPA released a pre-publication version of its dental amalgam separator rule proposal on September 25.  The proposed rule would require all dental offices that apply or remove amalgam to install dental amalgam separators that achieve a 99% reduction of total mercury.  The dental offices would also have to follow two Best Management Practices (BMPs): preventing scrap amalgam from being rinsed down the drain and cleaning of chair side traps with non-bleach, non-chlorine cleaners.  A one-time baseline report and initial compliance report would be required of dental offices, followed by annual certification statements.  Publicly owned treatment works (POTWs) would not be required to inspect or monitor dental offices that remain in compliance.

The proposal includes changes to the General Pretreatment Regulations to establish a new type of categorical user, the Dental Industrial User (DIU), which would not be subject to the oversight requirements for Significant Industrial Users (SIUs).  However, DIUs would become SIUs if the dental office did not remain in compliance with all requirements.  A DIU would be in significant noncompliance if it was 45 days late with its annual certification, requiring the POTW to initiate enforcement.  If compliance was achieved within 90 days (inspected and verified by the POTW), then the dental office would remain a DIU. 

EPA estimates that the average annual cost for a dental office is $700.  EPA estimates that it would take a total annual average of 17,400 hours and $960,000 for POTWs and other control authorities to review the information submitted by dentists that certify that they meet the requirements of the proposed rule.  NACWA will be reaching out to members to determine the accuracy of these estimates.  Additional details about the proposed rule, as well as a request for specific POTW information, will be provided in an Advocacy Alert after the rule is published in the Federal Register. 

NACWA has repeatedly stated to EPA that a national dental amalgam rule is not necessary, since successful state and local amalgam separator programs have been established where they are needed, and utilities without mercury issues can better use their resources on other environmental problems.  In a comment letter  last year, NACWA asked that EPA either drop the rule from consideration or formally propose it.  EPA submitted the rule to the White House Office of Management and Budget (OMB) this summer, and NACWA met with OMB in August to explain its concerns with an amalgam separator rule.  Finalizing the proposal now allows NACWA the opportunity to fully weigh in on it.  NACWA’s Pretreatment and Pollution Prevention Committee is reviewing the proposed rule and gathering information to be used in comments, which will be due 60 days after the proposal is published in the Federal Register.  Given the impact of this rule on POTWs, NACWA will ask for an extension of the comment period once the proposed rule is officially published.  NACWA will also put together a detailed Advocacy Alert analyzing the costs and water quality benefits that would result from implementation of this proposal.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Impact of Wipes on NACWA Members Featured on Dr. Oz; Groups Poised to Reach Agreement with INDA on Flushable Wipes

The impacts of flushable wipes and other wipe products were shown in graphic detail on The Dr. Oz Show on Tuesday, September 9, when Dr. Oz visited the Newtown Creek Wastewater Treatment Plant of NACWA Member Agency the New York City Department of Environmental Protection. Dr. Oz was both surprised and interested to learn that although wipes may be flushed down the toilet, most of them are not breaking down before reaching the treatment facility.  Back in the studio, Dr. Oz discussed the problem with Cynthia Finley, NACWA’s Director of Regulatory Affairs, who explained that the current voluntary flushability guidelines are not stringent enough to protect sewer systems.  The segment is available on The Dr. Oz Show website, broken into Part 1 and Part 2.  NACWA encourages Member Agencies to use this segment as an opportunity to engage in social media to raise the awareness of the wipes issue and NACWA’s Toilets Are Not Trash Cans! campaign.

The technical workgroup on flushability that was formed by NACWA, the Water Environment Federation (WEF), the American Public Works Association (APWA), and INDA (the trade association of the nonwoven fabrics industry) has concluded its meetings and will be trying to reach a formal agreement by October 17 on the path forward to reducing the burden on wastewater utilities from both wipes that are labeled “flushable” and wipes that are not designed to be flushed.  The associations hope to work collaboratively to improve flushability guidelines and promote product stewardship, including better labeling, among companies that produce and sell wipes.  Scopes of work are currently being developed for both the flushability guideline development and product stewardship efforts, and NACWA will inform members about the details of each once an agreement is reached.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

NACWA, Milk Producers Sign Landmark MOU

On September 9, NACWA and the National Milk Producers Federation (NMPF) signed a Memorandum of Understanding  (MOU) to promote increased cooperation and communication between the two organizations and their members. NACWA President and CEO of Alexandria Renew Enterprises presided over the signing ceremony. Building on NACWA’s work that secured language in the Farm Bill’s Regional Conservation Partnership Program (RCPP) enabling clean water agencies to form regional partnerships with farmers, the MOU seeks to align utilities with nearby dairy farms to work together to improve water quality by improving manure management practices. The event and the Association received significant attention from key national policymakers, including Members of the House and Senate, EPA, and the U.S. Department of Agriculture as detailed in the joint press release.

Potential projects include cooperation on building anaerobic digesters, which can put manure to good use for generating electricity, and increasing production of water quality benefits through the use of nutrient separation technologies and land management practices, such as planting grass buffers near streams and using no-till planting in fields. As a part of the MOU, NACWA and NMPF have committed to work together to educate policymakers and regulators on the value of these partnerships and the need for clarity on whether clean water agencies can be credited for water quality improvements made upstream.

With the signed MOU in hand, NACWA and NMPF are now interested in identifying several pilot projects to demonstrate that these types of partnerships can work. One NACWA member is meeting with NMPF officials in early October to discuss ongoing work with dairy farms and NACWA hopes to identify other members willing to explore work with upstream dairies. 

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

DEA Finalized Controlled Substance Disposal Rule; Pharmaceutical Take-Back Ordinance Upheld in Appeals Court

The Drug Enforcement Administration (DEA) finalized it Disposal of Controlled Substances Rule  on September 9, expanding the options for returning unused controlled substances to include take-back events, mail-back programs, and collection receptacles.  DEA proposed the rule in December 2012 and NACWA supported  the proposal.  Retail pharmacies, manufacturers, and some other entities may voluntarily administer and maintain mail-back programs and collection receptacles. However, there is currently no funding provided by either the government or pharmaceutical companies for these programs. 

Alameda County, California, and King County, Washington, both passed extended producer responsibility (EPR) ordinances that would require pharmaceutical manufacturers to pay for the collection and safe disposal of unused medications, and both were challenged in court by the associations representing pharmaceutical manufacturers.  The Alameda County ordinance was upheld this week in the Ninth Circuit Court of Appeals.  The ordinances in both Alameda County and King County ordinances can now both be implemented, unless the pharmaceutical industry appeals the Ninth Circuit ruling before the U.S. Supreme Court.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Biosolids

New Sewage Sludge Incineration Rule To Be Focus of October 15 Call

If your utility operates a sewage sludge incinerator (SSI), please mark your calendar for Wednesday, October 15 from 3:00 - 4:30 pm Eastern for a conference call to discuss implementation of EPA’s new SSI rule.  The March 2016 federal deadline for compliance is quickly approaching and utilities across the country are working to meet the new requirements.  NACWA staff will provide a brief update on recent developments concerning the Association’s advocacy efforts, but the bulk of the call will be devoted to discussing topics like operator training; air emission testing issues; pH continuous metering and scrubber water issues; emission testing during malfunction/bypass; and, other topics.  Please contact Chris Hornback, NACWA’s Senior Director of Regulatory Affairs at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you are interested in participating in the call.

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

EPA

EPA to Host Web Seminar for Members to Better Access Water Quality Data

The EPA Office of Wetlands, Oceans & Watersheds is offering a web seminar for NACWA members to learn more about their Water Quality Portal (Portal) which brings together chemical, physical, and microbiological data from the U.S. Geological Survey’s (USGS) National Water Information System (NWIS) and EPA's Storage & Retrieval Data Warehouse (STORET) – and provides it to scientists, policymakers, and the public in a single, user-friendly web interface. The Portal was developed through a collaborative effort by the USGS, EPA and the National Water Quality Monitoring Council (NWQMC) to improve water data accessibility.

The Portal is intended to reduce the burden on utilities who are searching, compiling, and formatting water monitoring data for use in models and analytical tools. This web seminar will demonstrate the wide range of Portal capabilities and highlight EPA's Water Quality Exchange (WQX) – the common data sharing format that enables data owners to share and access data through the Portal. The October 21 web seminar will take place from 3:00 – 4:30 pm Eastern, and advance registration is not necessary. To access the web seminar on October 21, call 866-299-3188 and use the access code 202-566-0399# along with the link https://epa.connectsolutions.com/waterdata/.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Funding/Financing

Guidance for Clean Water SRF Program Amendments Released

On September 18, the EPA issued initial guidance  to States regarding implementation of recently-enacted statutory revisions to the Clean Water State Revolving Fund (CWSRF) Program and related Clean Water Act provisions. Most of the provisions outlined in the document take effect October 1, 2014, the beginning of the new federal fiscal year. While these revisions are new, many address long-standing issues that have been of concern for several years – and that have been raised in other legislative vehicles. For example, the statute now contains an explicitly expanded list of eligible activities that can be funded through the CWSRF though many of these activities, such as security upgrades or measures to increase energy or water efficiency, are items that the SRF has supported for many years. Further, many revisions codify provisions Congress had included in annual appropriations language but that were never actually authorized in the underlying statute, such as Davis-Bacon prevailing wage requirements and Buy American requirements.

One provision of note requires that loan recipients develop Fiscal Sustainability Plans (FSPs). The guidance allows for States to implement this provision as flexibly as possible, urging States to view the plans as “living documents” that can evolve and develop over time. Utilities that do not already have an FSP will be allowed to access SRF funding to help develop one. They can also begin to develop an FSP by starting with the specific portion of the system for which SRF funding is being sought. Also, with respect to the requirement related to the FSP that utilities certify they have evaluated, and will be implementing, water and energy conservation efforts – utilities need only to demonstrate that they have done so “to the maximum extent practicable.”  EPA continues work on several provisions with later deadlines, including the definition of decentralized projects; provisions related to the revised CWA Sec. 122 authorizing Watershed Pilot Projects; and, a report addressing updates to the CWSRF funding formula.

Contact: Pat Sinicropi at 202/533-1823 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

National Disaster Resilience Grants Available for Eligible Municipalities

U.S. Department of Housing & Urban Development (HUD), in partnership with the Rockefeller Foundation, announced the launch September 17 of a $1 billion National Disaster Resilience Competition.  Eligible applicants for the competition will be the states with qualifying disasters and those units of local government that received Community Development Block Grant funds for disaster recovery (CDBG-DR) for disasters occurring in the last 3 years.  Eligible potential applicants  from 67 states, districts, territories, and local governments have been identified.  This is a good opportunity for NACWA members who have been impacted by natural disasters and are incorporating resilience into their long term planning.  Utilities in eligible counties can begin identifying local government partners and collectively applying for funds immediately.  NACWA has met with HUD staff implementing this program and will continue to distribute clarification and information on training as it becomes available.  Please let This e-mail address is being protected from spambots. You need JavaScript enabled to view it know if your utility anticipates joining the appropriate local or state governments to apply for the funding.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Pretreatment & Pollution Prevention

EPA Inspector General Report Says That Hazardous Chemical Regulations are Inadequate

The EPA Office of Inspector General (OIG) released a report , More Action Is Needed to Protect Water Resources From Unmonitored Hazardous Chemicals, on September 29.  The OIG found that EPA regulations “are not effective in controlling the discharge of hundreds of hazardous chemicals to surface water such as lakes and streams.”  The report states that wastewater utilities do not monitor for these hazardous chemicals due to the outdated priority pollutant list because of limited monitoring requirements and a lack of knowledge of discharges reported by industrial users under the Toxics Release Inventory (TRI), among other reasons.  The report also criticizes the lack of enforcement actions due to whole effluent toxicity (WET) test failures.  The OIG recommended that EPA develop a format for sharing TRI data, develop a list of chemicals to include in permits that are not in the priority pollutant list, and track toxicity tests and violations.  NACWA’s Pretreatment & Pollution Prevention Committee will be reviewing this report and considering if a response is needed. 

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Security

Cybersecurity Workgroup Formulates Water Sector Strategy

The Water Sector Cybersecurity Workgroup met in person for a second time on September 23-24 to finalize recommendations to assess gaps in available cybersecurity guidance, tools, and resources for utilities – and to provide outreach and training to utilities. Two representatives from NACWA Member Agencies are members of the Workgroup: Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, who is Vice Chair of the Water Sector Coordinating Council (WSCC) and serves as Co-Chair of the Workgroup, and Nelson Sims from DC Water.

The Workgroup was convened by the Water Sector Coordinating Council (WSCC) and the Government Coordinating Council (GCC), with the goal of improving the resiliency of water and wastewater utilities by developing a strategy to promote and facilitate the use of the National Institute of Standards & Technology (NIST) Framework for Improving Critical Infrastructure Cybersecurity. The Framework was developed in response to the February 2013 Executive Order 13636, Improving Critical Infrastructure Cybersecurity. A final Workgroup report will be available by the end of the year.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Stormwater

Court Hears Arguments in Key Stormwater Case

The Ohio Supreme Court held oral arguments Sept. 9 in a closely-watched legal case involving municipal stormwater management programs. The litigation in Northeast Ohio Regional Sewer District (NEORSD) v. Bath Township, et al. addresses a challenge to a municipal stormwater management program instituted by NACWA Member Agency, the Northeast Ohio Regional Sewer District (NEORSD). Legal wrangling over the program and its related stormwater fee component reached all the way to the state Supreme Court after conflicting decisions by two lower courts.

Judges at this week’s arguments were well-prepared and very engaged during questioning. A number of judges on the seven member panel appeared to endorse arguments put forth by NEORSD in defense of the stormwater programs and seemed skeptical of contentions put forth by the challengers. Additionally, a significant number of the judges were attuned to, and concerned about, the environmental and flooding impacts related to stormwater management – and appeared to understand the need for robust and well-funded stormwater management programs. Full video coverage of the arguments is available here.

NACWA joined with the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) to file a brief  in the case supporting NEORSD and emphasizing the importance of municipal stormwater management and fee programs. Additional information on the case is available on the Association’s Litigation Tracking webpage. NACWA’s participation in this litigation is part of the Association’s aggressive advocacy to defend stormwater programs. The Association has engaged in similar cases in the past and will continue to do so. A decision from the court is expected in the coming months, and NACWA will report on any developments.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Water Quality

NACWA, Water Sector Groups Discuss Waters of the U.S. Rulemaking; Comment Period Extended to November 17

NACWA met September 3 with the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), and other water sector groups to discuss EPA’s Waters of the U.S. rulemaking and areas of agreement that might comprise a joint, water sector letter on the rule. EPA recently announced that it is extending the comment deadline to November 17, and the water groups have been working to solicit input from their respective members since the proposed rule was published in April. NACWA has largely stayed out of the debate on the rulemaking, as most of its members are already discharging to jurisdictional waters, focusing instead on preserving the existing waste treatment exemption. The Association is developing comments on the rule and will seek clarification on a number of issues. NACWA developed a fact sheet  outlining some of the areas where additional clarification will be needed and welcomes additional feedback from the membership.

In related developments, the House Rules Committee announced plans to move forward with consideration of H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act . This legislation would prohibit EPA and the U.S. Corps of Engineers from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed rule and related guidance. With this announcement, it is likely that the full House will vote on the bill during its September work period. There are no similar plans in the Senate. The U.S. Small Business Administration’s Office of Advocacy has also recommended that the Rule be withdrawn.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

NACWA Discusses Nutrient Permit Limits with EPA, State Regulators

NACWA met with both key EPA water office staff and state water regulators September 25 to brief them on the findings and recommendations from a recent report on the development of nutrient permit limits. Developed with Targeted Action Fund (TAF) resources, the report analyzes EPA’s use of its Technical Support Document for Water Quality-Based Toxics Control (TSD) as guidance for nutrient permitting. The Review of USEPA Methods for Setting Water Quality-Based Effluent Limits for Nutrients  (Report) finds that due to fundamental differences in how nutrients and toxics affect receiving waters, the use of toxics-based methods is often inappropriate for nutrients. EPA, however, has relied upon concepts in the TSD as it works to train state permit writers on developing nutrient limits.

In its meeting with EPA, NACWA focused its comments on the Agency’s permit writer training course and the need to make changes to the training materials (which NACWA reviewed last year). Barbara Biggs, Government Affairs Officer with the Metro Wastewater Reclamation District in Denver and Chair of NACWA’s Water Quality Committee, and Jim Pletl, Director of Water Quality for the Hampton Roads Sanitation District in Virginia, and Vice Chair of the Committee, participated in the meeting. EPA first conducted the training in July 2013 as a pilot, one-day session and held a two-day session in Denver this past August. The Agency indicated that it intends to update the training materials as the sessions continue, and welcomed the Report. NACWA’s Report highlights areas where EPA’s use of the TSD has been found to be appropriate; appropriate with some modification; or inappropriate. At the conclusion of the meeting, EPA offered to meet with NACWA regularly in the coming months to discuss issues raised in the Report in more detail to better inform the Agency as it works to refine the training materials.

Following the meeting, the lead author of the Report, Clifton Bell with Brown and Caldwell, provided a detailed presentation of the findings and recommendations via webcast to more than 80 state water regulators and permitting officials. The Association of Clean Water Administrators (ACWA) arranged the web-based meeting with its Nutrient Policy Committee. NACWA will maintain a dialogue with the state regulators on the issue and plans to include ACWA in any future meetings with EPA as appropriate.

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Members seeking more information or related regulatory activity in their state can access NACWA’s State Action Track web tool, here.