The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2007 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to October 10, 2007.  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 This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with any questions or information on the Update topics.

Top Story

NACWA Advocacy Leads to Regulation of Washing Machines

Consistent with NACWA’s recommendations, EPA clarified in a September 21 Federal Register notice (PDF) that ion-generating equipment, including washing machines that release silver ions, would be regulated as a pesticide.  NACWA had specifically raised concerns (PDF) with EPA about residential washing machines using silver ions to disinfect clothes and the potential for such machines to have negative impacts on the environment.  EPA first declared that the machines were devices not subject to the pesticide requirements in 2005, but announced in 2006 that it was changing its interpretation.  The September 2007 notice formally announces EPA’s current interpretation, stating that because these washing machines incorporate a substance that accomplishes their pesticidal function (in this case silver ions), the machines are considered pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  As pesticides, these machines will need to be formally registered with EPA, and will need to go through the registration process, including potential testing to evaluate the impacts of the machines on human health and the environment.

Early reports about EPA’s decision to include such equipment in its FIFRA program seemed to suggest that a simple change in marketing tactics by the manufacturer, to eliminate claims of anti-microbial properties, might circumvent the registration requirements.  While this issue is not specifically addressed in the September notice, the wording of the notice clearly states that it is the equipment’s inclusion of a substance to achieve the pesticidal function that triggers the requirements, not marketing claims or lack thereof.  NACWA’s Pretreatment and Pollution Prevention Committee and Emerging Contaminants Workgroup are continuing their efforts to leverage FIFRA and other  key environmental statutes to address the growing list of consumer products that are introducing toxic or otherwise harmful substances into the sewer system.

Air Quality and Climate Change

NACWA, AMWA, WESTCAS, WEF to Host Meeting on Climate Change

NACWA and the Association of Metropolitan Water Agencies (AMWA), along with the Western Coalition of Arid States (WESTCAS) and the Water Environment Federation (WEF), will convene a meeting of water and wastewater utility representatives December 3-4 in Albuquerque, N.M., to discuss the potential impacts of climate change on the clean water community.  Details are still being developed, but NACWA and the other groups are hoping the meeting will generate more information regarding potential challenges the water sector faces as the national and international communities grapple with climate change issues and explore the role of utilities in reducing greenhouse gases.  If your agency is working on climate change issues or will be in the near future, this is one meeting you should attend.  There is no registration fee, but attendance will be limited to facilitate discussion.  Utility representatives interested in participating please contact Chris Hornback at chornback@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it as soon as possible for more details.

Congress, EPA Continue to Focus on Climate Change

The House Energy and Commerce Committee recently released a white paper (PDF) outlining what it envisions as the scope of a greenhouse gas cap-and-trade program.  Greenhouse gas emissions from wastewater treatment plants are included in the waste services component of the commercial sector, which accounts for six percent of all U.S. greenhouse gas emissions according to the paper.  While portions of the commercial sector could be included in a cap-and-trade program, the white paper indicates that the difficulty in measuring emissions from wastewater treatment plants accurately could limit their role in such a program.  There may be significant opportunities, however, to take advantage of wastewater treatment plant efforts to capture methane gas and use it for electricity generation.  Such activities could be used to generate credits or offsets in a cap-and-trade program.

EPA’s Office of Water continues work to develop its own strategy on climate change.  NACWA believes that the strategy, expected to be released this Fall, will include some mention of expanding the Agency’s existing Combined Heat and Power (CHP) program, which encourages landfills to capture and reuse the methane they generate, to wastewater treatment plants for use in a potential cap-and-trade market.

Conferences and Meetings

NACWA’s Annual Hot Topics Breakfast at WEFTEC

NACWA invites you to attend its annual Hot Topics Breakfast on Tuesday, October 16 from 8:00 - 9:45 a.m. at the Manchester Grand Hyatt, the WEFTEC 2007 headquarters hotel in San Diego.  The breakfast will feature key policy-makers who will explore the full spectrum of clean water issues and be available to answer your questions on these important topics.  EPA officials from several program offices will discuss the Agency’s work on issues that most directly impact the clean water community, including revisions to EPA’s guidance on conducting financial capability assessments, the current status of the proposed peak wet weather flows policy, the new Critical Path Science Plan that maps out EPA’s efforts over the next five years to develop new recreational water quality criteria, and more.  Jim Hanlon, director of EPA’s Office of Wastewater Management, will participate, along with key leaders from the Office of Science and Technology and the Office of Wetlands, Oceans, and Watersheds.  The Breakfast will take place in Elizabeth A on the second level of the Manchester Grand Hyatt, just a short distance from the convention center, so please stop by on your way to the convention center.

While at WEFTEC, also plan to join NACWA, the Water Environment Federation (WEF), and the American Public Works Association (APWA) as they host the first-ever Clean Water Advocacy Center at WEFTEC (Booth #4537) and stop by NACWA's booth (#4643).

NACWA’s Pretreatment and Pollution Prevention Workshop Only a Month Away!
It’s not too late to make your plans to attend NACWA’s 2007 National Pretreatment and Pollution Prevention Workshop.  This year’s workshop will continue the trend in recent years of exploring in detail the changes, challenges, and creative solutions in today’s pretreatment field.  Cutting-edge issues including biofuel waste and pharmaceuticals will be discussed along with the latest in the core pretreatment subjects like effluent guidelines, analytical methods, and enforcement.   Key U.S. EPA officials will be on hand from both the Office of Wastewater Management and the Office of Science and Technology to discuss these and other issues.  The Workshop is scheduled for November 14-16, at the Westin Tabor Center in downtown Denver, Colorado.  An agenda and online registration information is available on NACWA’s Conferences and Meetings website.

Enforcement and Compliance

EPA Memo on Compliance Schedules

NACWA has recently received a copy of a May 10, 2007, memorandum from Jim Hanlon, Director of the Office of Wastewater Management, detailing when and under what conditions, compliance schedules may be included in Clean Water Act permits for water quality-based effluent limits.  The memo, while essentially restating long-standing agency policy, reiterates some of the key principles of using compliance schedules.  The memo states that “compliance schedules are allowed for effluent limitations based on standards adopted after that date [July 1, 1977] only if the State has clearly indicated in its water quality standards or implementing regulations that it intends to allow them.”  The memo also makes it clear that while a compliance schedule must ensure that water quality standards are met as soon as possible, a compliance schedule may extend beyond the term of a permit, again where allowed under State law.  The memo (PDF) is available on NACWA’s website.

Facility and Collection Systems

Overflow Monitoring and Notification, Senate Bill Introduced, NACWA to Testify

NACWA is carefully reviewing a new bill, the Sewage Overflow Right-To-Know Act of 2007 (S. 2080),  recently introduced by Sen. Frank Lautenberg (D-N.J.), chairman of the Senate Environment and Public Works Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality.  The bill would require publicly owned treatment works (POTWs) to monitor for and report all sewer overflows.  This is the Senate companion to the Raw Sewage Overflow Community Right to Know Act (H.R. 2452), introduced in the House on May 23.

The next step for the House bill is an October 16, hearing before the House Transportation and Infrastructure Subcommittee on Water Resources and Environment.  NACWA Treasurer Kevin L. Shafer, executive director of the Milwaukee Metropolitan Sewerage District, will testify on behalf of the Association.  The language in both bills is vague as to what would be required of POTWs for overflow monitoring, but does include specific requirements for public notification within 24 hours of a discharge into waterways.  Though some of the rhetoric about the dangers of overflows has been toned down in the Senate version, language in the bills and in supplemental information from Lautenberg’s office vastly overstates the risk posed by sewer overflows, citing illness rates that have since been proven inaccurate by EPA.

Should the bills pass, EPA would presumably be responsible for developing regulations to implement the monitoring and notification requirements.  NACWA has supported earlier EPA attempts to develop regulations on notification, but as part of a larger package, specifically the draft sanitary sewer overflow rule that was never published, which would have provided national consistency on a broad range of collection system issues, not just monitoring and/or notification.  The language in the current bills makes no distinction between overflows that have the potential to cause harm to human health or the environment and those that do not.  There is also very little information on what would be required to monitor for overflows.  NACWA will make its testimony available to members upon its finalization in an upcoming publication.  See NACWA Legislative Alert 07-3 for more information on the bills.

Utility Management

NACWA Tracks EPA Efforts to Develop Energy Star Program for Water Industry

For the past several years NACWA has been working with EPA’s Energy Star program as it worked to explore a water-industry focus under the popular energy conservation program.  Recognizing the tremendous power demands of modern water and wastewater systems, EPA has been working to develop a measurement and, most likely, a subsequent recognition program similar to what is used for consumer products.  The primary focus over the past few years has been the development of an assessment tool to help wastewater utilities inventory their power usage.  EPA will roll out an expanded version of its energy rating system, Portfolio Manager (PM), this month to provide the following for wastewater treatment utilities interested in participating in the program:

1. Measure and track energy use over time;
2. Establish a baseline and calculate energy sayings over that baseline;
3. Calculate carbon emissions; and
4. Provide the ability to share data with other PM users to facilitate information sharing.

The Energy Star program’s industry sector efforts all begin with this measurement or assessment component.  Interested utilities can begin participating by sending EPA a letter indicating their commitment to reducing their energy usage.  NACWA will be providing the membership with more details on this in the near future, but EPA’s website also has additional information (www.energystar.gov). At this point there is no recognition program for the water sector, but with increased participation in the measurement effort NACWA anticipates that EPA will pursue such a program.

Water Quality

NACWA Files Expert Report on BEACH Act Litigation

NACWA filed its Expert Report in Natural Resources Defense Council (NRDC) v. EPA on October 5.   The case involves a legal challenge regarding EPA’s failure to establish new recreation water quality criteria as required by the Beaches Environmental Assessment and Coastal Health Act (BEACH Act).  NACWA’s Expert Report outlined the Association’s scientific position in the case including what additional studies NACWA believes EPA should conduct and how much time the Agency will need to publish appropriate criteria.   NACWA generally agreed with EPA in its estimated schedule for completing the necessary research to develop new criteria, but suggested several other studies to conduct concurrently to fill key data gaps in EPA’s science and criteria development plans.  NACWA also recommended that rather than going straight into the criteria development process at the end of the three-year research process, EPA should conduct extensive outreach following the research to ensure that it has the information it needs to proceed with criteria development.  This would add to EPA’s overall schedule of five years, but would ensure the research is fully vetted before being used to in the criteria development process.

NACWA’s Expert Report also questioned EPA’s continued reliance on fecal indicator bacteria as the basis of any new criteria.  NACWA’s Expert Report will be posted on the website early next week.

NACWA Participates in Detection/Quantitation FACA Meeting as Report Nears Completion

Nearing the end of its two and a half year charter, the Federal Advisory Committee on Detection and Quantitation met in Arlington, Va., September 19-21, to make several key decisions that will be detailed in the Committee’s final report.  NACWA members, including Jim Pletl, Hampton Roads Sanitation District, Virginia Beach, Va., and Zonetta English, Louisville Jefferson County Metropolitan Sewerage District, Ky., participated in the second to last meeting of the Committee, along with representatives from EPA, the states, environmental groups, analytical laboratories, and industry.  The Committee was charged with providing recommendations to EPA on approving their current procedure for determining method detection and quantitation levels, and on the use of those levels in Clean Water Act programs.  Unfortunately, consensus was not reached on a new procedure and on several key issues like the need for measurement quality objectives, with EPA providing the dissenting vote in most cases, but significant progress was made.  The final report, which will be completed at the Committee’s final meeting scheduled for December, will detail both the majority and minority opinions from the process.  EPA will then take that information under advisement and work to develop a proposed rule for public comment based on the Committee’s work.  Additional details on the Committee’s work are available online and by contacting NACWA’s National Office.

NACWA, Key Water Quality Stakeholders Meet with EPA on TMDLs

On October 3, 2007, NACWA along with members of the Federal Water Quality Coalition (FWQC) met with EPA officials from the Office of Wetlands, Oceans, and Watersheds; the Office of Science and Technology; the Office of Wastewater Management; and the Office of General Counsel to discuss several total maximum daily load (TMDL) issues.  This was the first meeting to include representatives from each of these key EPA offices since the recent issuance of several TMDL-related guidance documents and policy memos on developing and implementing TMDLs in light of the U.S. Court of Appeals for the District of Columbia decision that all TMDLs must include a daily expression of the load.  An EPA policy memo (PDF) from November 2006 instructed TMDL developers nationwide to include a daily expression of the load, despite the fact that the court case was limited in its applicability to the D.C. Circuit.  EPA has clearly stated its policy that permit limits based on a TMDL do not need to be expressed on a daily basis, as long as those limits will ensure that water quality standards will be met.  NACWA, however, remains skeptical that such an approach will withstand legal challenge.

The meeting focused on recent implementation of the TMDL program and how TMDL development is being impacted by EPA’s new policy and guidance.  While several TMDLs that incorporate these new ‘daily’ load principles are currently in various stages of development, EPA is not aware of any instances where corresponding permit limits have been issued.  The Anacostia TMDL on total suspended solids, which was part of the original challenge leading to the Court of Appeals decision, has been revised and may be the first ‘test case’ under EPA’s new approach.  TMDLs for bioaccumulative pollutants are presenting additional challenges as TMDL developers struggle with fish tissue pollutant concentrations rather than water column concentrations.  EPA is planning to provide states with additional information and case studies as they become available and is planning a webcast in November or December of this year on the issue.  NACWA continues work on a Targeted Action Fund (TAF) project relating to the daily load issue and expects to release the results of that project to the membership in November.  The final report from the TAF project will provide NACWA members with additional insight into the daily load issue as it relates to nutrients, mercury, and bacteria – pollutants that often do not lend themselves to daily load calculation.