The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2007 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to September 14, 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.

Biosolids

Court Overturns Kern County Ban, Marking Major Victory in Biosolids Case

On August 10, a federal district court in California granted the request for final judgment sought by the City of Los Angeles and several Southern California agencies to overturn Kern County’s ban on biosolids and allow their continued application on farmland.  The court’s ruling makes permanent a November 2006 preliminary injunction that prevented enforcement of the biosolids ban, which was approved by Kern County voters in June 2006.  The ban would have halted all land application of biosolids in the unincorporated areas of the county and would have significantly impacted the City of Los Angeles, which applies its biosolids on a 5,000-acre farm it owns in Kern County.

In its ruling, the U.S. District Court for the Central District of California explained that the proposed ban “demonstrated irreparable harm” because it violated the U.S. Constitution by unfairly discriminating against biosolids from metropolitan Los Angeles and other areas of Southern California.  The court endorsed the land application of biosolids, ruling that it “constitutes a ‘beneficial use’ of biosolids,” and noted that the U.S. Environmental Protection Agency (EPA) embraced the term “biosolids” in order to emphasize “the beneficial nature of this valuable, recyclable resource.”  The court also noted that “government agencies cannot decide to stop producing biosolids and instead must find ways to manage those that are produced,” emphasizing that land application is an important and environmentally safe way to recycle biosolids.  The decision marks a major victory for the land application of biosolids and is a strong ruling that will help clean water agencies involved in land application not only in California but also in other parts of the nation.

The Kern County supervisors voted August 21 to appeal the district court’s ruling.  NACWA will keep its members apprised of future developments in this case.

Biosolids-Derived Compost Included in Key Federal Procurement Program

In a September 14 Federal Register notice, EPA announced its plans to revise its list of items designated in the Comprehensive Procurement Guidelines landscaping products category to promote the use of materials recovered from solid waste, including compost made from biosolids.  EPA is expanding the current description of “compost” from yard trimmings and food waste to include compost from biosolids and manure.  In addition, EPA has added fertilizer made from recovered materials as a designated landscaping item in the procurement guidelines.  NACWA’s January 2004 comments on the proposed changes encouraged EPA to make this revision to better recognize the value of biosolids. 

The Resource Conservation and Recovery Act (RCRA) requires federal procurement officials to buy products containing recovered materials when the agencies spend more than $10,000 a year on that item.  Procuring agencies are federal, state, and local agencies, and their contractors that use appropriated federal funds.  For example, if a county agency spends more than $10,000 a year on an EPA-designated item and part of that money is from appropriated federal funds, then the agency must purchase that item made from recovered materials.  Agencies are required to purchase the product with the highest recovered material content level practicable, given reasonable competition, product price, performance, and availability.  Through the CPG requirement, EPA is harnessing the purchasing power of the federal government to foster and support markets for recycled-content products.  The inclusion of biosolids in the list of qualifying products signals a broader acceptance of land application and provides a new market for biosolids-derived compost.

Conferences and Awards

Agenda Now Available for NACWA’s Pretreatment and Pollution Prevention Workshop

NACWA’s 2007 National Pretreatment and Pollution Prevention Workshop will explore the changes, challenges, and creative solutions in today’s pretreatment field.  EPA Headquarters staff will attend the Workshop to update attendees on several national issues affecting the pretreatment program, including ongoing Effluent Guideline development for drinking water treatment residuals and airport deicing wastes, and evaluation of the need for new guidelines for health care facilities.  The current implementation of pretreatment streamlining and its changes to laboratory procedures will be discussed, as will updates to the 40 CFR 136 laboratory methods.  Regional EPA staff will participate in roundtable discussions to answer questions and address regional issues with conference participants.  Panel presentations are planned for a variety of topics, including hauled waste issues, pharmaceuticals in wastewater, contaminants from consumer products, and enforcement and criminal case studies.  The Workshop will be held November 14-16 at the Westin Tabor Center in downtown Denver, Colorado.  An agenda is available on NACWA’s Conferences and Meetings website, and online registration will be available soon.

Emerging Contaminants

EPA Responds to Sierra Club Petition on Surfactants

A recent petition from the Sierra Club and several other stakeholders seeking EPA action under the Toxic Substances Control Act (TSCA) to address concerns about nonylphenol ethoxylates (NPE) in detergents echoes concerns raised by NACWA regarding the federal government’s handling of emerging contaminant issues.  The petition notes that wastewater treatment plants should not be relied upon to remove NPEs or other similar contaminants, and that these types of substances are better controlled at the source, before they are used in detergents or other products.  NACWA supported the general concepts in the petition in a July 23 letter (PDF), highlighting the need for better source control in lieu of relying on incidental removal or end of pipe treatment at a wastewater treatment plant. 

While NACWA did not weigh in on the other components of the petition, including whether NPEs were in fact endocrine disruptors and therefore required regulation, the petition is consistent with NACWA’s advocacy in its targeting of additional federal controls and oversight on the use and approval of chemicals rather than looking to wastewater treatment plants to remove them.  EPA’s response (PDF) to the Sierra Club petition, available in the September 5 Federal Register, denied all of the petition’s requests except for the request for chronic toxicity testing of “short-chain” NPEs.  Regarding the potential for endocrine disruption, EPA stated that “[a]vailable studies already evaluate effects on the test organisms’ mortality, growth, and reproduction, which are apical to any endocrine disruption that may occur.  As summarized in EPA’s Office of Water Ambient Water Quality Criteria (WQC) Document for NP, the ability of nonylphenol to induce estrogenic effects has seldom been reported at concentrations below the freshwater final chronic value.”  NACWA will continue to follow the issue as EPA proceeds with the regulatory process to further evaluate the need for additional chronic toxicity testing.

EPA Convenes Peer Consultation on Characterization of Nanomaterials

EPA held a peer consultation public meeting on September 6-7 to help the Agency develop its Nanoscale Materials Stewardship Program (NMSP) under the Toxic Substances Control Act (TSCA).   With over 800 companies and other entities in the U.S. currently working with nanotechnologies and the use of nanomaterials in pharmaceuticals and consumer products increasing, POTWs are probably already receiving nanomaterial waste.  The life cycle, environmental consequences, and human health effects of nanomaterials are not yet known, and their use and disposal is not regulated.  At the peer consultation meeting, a panel of scientists discussed how to define the physical, chemical, hazard, and exposure characteristics of nanomaterials.  The NMSP will potentially include voluntary reporting of nanomaterial characteristics by entities that produce and use nanomaterials, which will help EPA and the public better understand the types, volumes, and uses of engineered nanomaterials.  Information from the reporting will help EPA conduct risk assessments and implement appropriate risk management practices.  NACWA will continue to follow EPA's progress in investigating the properties and risks of nanomaterials and notify members of developments affecting wastewater treatment.

Facility and Collection Systems

EPA Encourages Use of Green Infrastructure in Permitting, Enforcement

On August 16, EPA issued a memo (PDF) to clarify how green infrastructure can be incorporated into existing regulatory programs.  The Water Permits Division and Water Enforcement Division of the Office of Enforcement and Compliance Assurance (OECA) issued the memo to regional EPA water division directors and enforcement coordinators, as well as all state NPDES directors.   The memo states that, “In developing permit requirements, permitting authorities may structure their permits, as well as guidance or criteria for stormwater plans and CSO [combined sewer overflow] long-term control plans, to encourage permittees to utilize green infrastructure approaches, where appropriate, in lieu of or in addition to more traditional controls.” For enforcement activities, EPA will consider the feasibility of using green infrastructure as a pollution control option and encourages states to do this as well. 

This memo is a direct result of the agreement EPA entered into on April 19, 2007, with NACWA, the Natural Resources Defense Council (NRDC), and other organizations to promote the use of green infrastructure in protecting water quality and reducing combined and separate sewer overflows.  NACWA and these other organizations also created a similar document, the Statement of Support for Green Infrastructure, which outlines the goals and benefits of green infrastructure and expresses support for its expanded use.   The Statement has already been signed by more than 30 national environmental and clean water groups.  A copy of the statement is now available on EPA’s green infrastructure homepage , with an online sign-up feature to allow corporations, organizations, municipalities, and government entities supporting green infrastructure to become signatories.  Groups signing the statement will also be listed on the EPA webpage.  NACWA encourages its members to visit the website and sign the statement.

Water Quality

EPA Issues New Guidance on Watershed Permitting

EPA recently published its technical guidance on integrating NPDES permits into watershed management plans.  Watershed-Based NPDES Permitting Technical Guidance is a follow-up to the 2003 watershed permitting implementation guidance, and it leads interested parties through the analysis of watershed data and developing a framework for implementing an NPDES program.  The guidance includes case studies describing how watershed approaches involving NPDES permitting have been implemented across the country.  The agency is accepting comments on the guidance on a continuing basis.  NACWA is interested in hearing from members who may have comments on the guidance.   An electronic copy of the guidance is available on EPA's website .

Work to Prepare NACWA Expert Report on BEACH Act Litigation Continues

NACWA will be filing its Expert Report in Natural Resourced Defense Council (NRDC) v. EPA by September 21.   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 will outline the Association’s scientific position in the case, including what additional studies NACWA believes are necessary for EPA to conduct and how much time the Agency will need to publish appropriate criteria.   NACWA’s position will be based on a review of existing EPA information produced during the discovery process and the Agency’s Critical Path Science Plan, which NACWA is currently reviewing. 

The BEACH Act called for EPA to assess potential human health risks from exposure to bacteria and other pathogens found in costal recreational waters, and to then publish resulting bacteria and pathogen indicators by October 2005.  However, EPA missed this deadline and NRDC filed suit last summer against the Agency.  The NACWA Board approved participation in the case in September 2006, and NACWA filed a Motion to Intervene in the case in December 2006 so that the Association could bring the clean water community’s voice to anticipated settlement discussions.  NACWA was granted intervention in the case as a plaintiff in March, over the objections of NRDC.  Also in March, the court granted NRDC’s Motion for Summary Judgment on the Pleadings and ruled that EPA violated the BEACH Act by failing to publish the new criteria by October 2005.  The focus of the case now is on how much time EPA will be given by the court to meet its BEACH Act obligations.

Initial settlement discussions have begun between EPA and NRDC, and both NACWA and the other intervenor in the case, the County of Los Angeles, have asked to participate.  The discovery process is expected to stretch into October, with the parties then exchanging Motions for Summary Judgment.  NACWA will keep the membership updated about developments in this case.

Science Advisory Board Considers NACWA’s Comments on Hypoxia Panel Report

The EPA Science Advisory Board (SAB) will consider the latest draft of a report regarding hypoxia in the Gulf of Mexico when it meets on October 3-5 in North Carolina.  NACWA filed comments in July raising several concerns about an early draft of the report, prepared by the SAB’s Hypoxia Advisory Panel, which relies heavily on point source controls and recommends that all major wastewater treatment plants upgrade to near limits of technology for nutrients.  NACWA’s comments were highly critical of the report’s lack of a cost-benefit analysis for point source controls.  The report relies on flawed anecdotal information from other large, regional efforts, such as the Chesapeake Bay, and makes no attempt to compare the relative cost of point source controls to nonpoint source controls.

During conference calls on July 30 and August 1, the Advisory Panel discussed revisions to the report.  While panel members recognized that point sources are not the largest nutrient sources, they continue to believe that they are important and that tighter effluent limits are both cost-effective and justified.  NACWA is still reviewing the latest draft of the report to determine whether any changes were made and will keep the membership informed of future developments.

NACWA Meets with Key Institute to Discuss Lab Accreditation

NACWA and representatives from the Water Environment Federation (WEF) and the American Water Works Association (AWWA) met with the Executive Director of The NELAC Institute (TNI) on August 9 to discuss the issue of environmental lab accreditation.  The National Environmental Lab Accreditation Conference (NELAC) standard for lab accreditation was criticized in a series of letters last year from NACWA, WEF, and AWWA for the burden it placed on environmental labs and its lack of a real link to data quality, among other reasons.  TNI, a new organization that was developed to implement the NELAC standard and work on the development of new standards, has acknowledged the need to address the concerns raised by NACWA, WEF, and AWWA. 

The August 9 meeting was an exploratory meeting to determine whether there was sufficient interest among the organizations to begin development of a new, non-NELAC standard that would be less burdensome and more directly related to data quality to ultimately serve as a national standard for water and wastewater labs.  While there are concerns about consistency under the current program, which relies on a patchwork of state accreditation programs with varying degrees of complexity, the water industry representatives made it clear that their primary concern was data quality and that a standard that does not result in higher quality data would not be a viable alternative.  NACWA will continue discussing the issue with TNI and welcomes input from the membership on lab accreditation.