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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: December 15, 2008

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the December 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to December 15, 2008. 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 or Cynthia Finley at 202/296-9836 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.

NACWA Meets with Obama’s Transition Team on Key Priorities

NACWA met with members of President-elect Barack Obama’s U.S. Environmental Protection Agency (EPA) transition team on December 3 to outline the clean water community’s priorities for the new administration.  Chuck Fox, former EPA assistant administrator for water, and Meryl Harrell represented the transition team.  Their meeting with NACWA was one of a series of meetings with senior EPA water officials and other stakeholder groups to gather the most comprehensive information possible for the incoming administration to ensure a smooth transition.

Funding issues were a major focus of the meeting, with a significant emphasis on the proposed economic stimulus package and NACWA’s request that $10 billion be included to finance ready-to-go wastewater infrastructure projects.  NACWA reiterated that most of the funding should be in the form of grants and could be administered by states through the Clean Water State Revolving Fund (CWSRF).  In addition, NACWA discussed the need for a long-term solution to counteract the funding shortfall facing its members, including their need for a clean water trust fund.  

NACWA also outlined the clean water community’s efforts to address climate change and stressed the need for more accurate estimates of greenhouse gas emissions from clean water agencies.  The Association urged EPA to resume work on a comprehensive policy for addressing sanitary sewer overflows and to issue final guidance on handling peak excess flows.  NACWA described its concerns about a petition to have EPA establish secondary nutrient standards for clean water agencies and emphasized that much more research is needed regarding emerging contaminant impacts to human health and the environment.  The Association will continue to meet with key officials during the transition period and will pursue meetings with Obama officials to ensure that the views of the clean water community are considered in the new administration.

New EPA Policy Requires More Consultation with State and Local Governments

EPA instituted a new policy to broaden its consultation with state and local government when new regulations or policies cost more than $25 million each.  This policy is an update to an existing policy that required consultation only when regulations or policies cost more than $100 million.  The original policy was first issued in 1999 in response to Executive Order 13132 that requires the federal government to consult with other elected officials before proposing regulations with substantial direct effects below the national level, such as high implementation costs or preemption of state or local authority.  EPA originally set the $100 million threshold to match the threshold used in the 1995 Unfunded Mandates Reform Act, but saw a need to lower the threshold based on its experience with rulemakings over the last several years.  EPA is not consulting under this policy with particular trade organizations, like NACWA, but broad-based organizations representing elected and appointed officials only.  As such, EPA will consult with 10 organizations under the new policy, including the National Governors Association, the U.S. Conference of Mayors, and the Environmental Council of the States.

NACWA Comments on EPA Proposed Rulemaking on Regulating Greenhouse Gases

On November 26, NACWA submitted comments on EPA’s Advance Notice of Proposed Rulemaking: Regulating Greenhouse Gas Emissions under the Clean Air Act (“ANPR”), which was published in a July 30 Federal Register notice.  The ANPR represents a comprehensive effort to use the current Clean Air Act to regulate greenhouse gas emissions from virtually all sectors by improving energy efficiency through design and operations.  In its comments, NACWA states that “the Clean Air Act in its current form may not be the best tool for regulating greenhouse gases… Instead, a new framework for regulating greenhouse gases should be developed that recognizes the strong interrelationship between climate change and water resources which include water supply, stormwater, and wastewater; the unique environmental effects of these emissions; the economic impacts of the regulations; and additional government actions that may be necessary for the nation to deal with climate change, such as increased research on climate change impacts on water resources and adaptation measures.” NACWA will continue to advocate for water to be considered in any climate change regulation or legislation, and will keep members informed of new developments in the ANPR and other climate change activities.

EPA Offices of Water and Air Sign Agreement on Energy Efficiency and Emissions

EPA’s Office of Water (OW) and Office of Air and Radiation (OAR) signed an inter-agency Memorandum of Understanding on November 24 to promote energy efficiency and reduction of greenhouse gas emissions at clean water and drinking water utilities.  The memorandum lists current programs that may help contribute to these goals, such as the OAR ENERGY STAR program’s performance rating capability for publicly owned treatment works (POTWs), which provides an opportunity for POTWs to assess their energy efficiency relative to other utilities nationwide, and the Combined Heat and Power Partnership (CHPP) and Landfill Methane Outreach Program (LMOP), which may offer opportunities for enhancing power production from biogas at POTWs.  In addition, OW’s Municipal Technology Team in the Office of Wastewater Management promotes the use of efficient technologies for sustainable wastewater treatment and solids processing, and the Sustainable Infrastructure Program promotes energy management at utilities.  OW’s Office of Groundwater and Drinking Water also promotes water efficiency, which may lead to reduced energy consumption and help with issues related to water availability.  OW and OAR intend to use these programs and future efforts to promote energy conservation and biogas use at POTWs, reduction or offsetting of greenhouse gas emissions from POTWs, and water efficiency and energy reductions at water utilities.

NACWA Sponsors Meeting on Antimicrobials in Consumer Products

NACWA convened a meeting of the National Dialogue on Safe and Sustainable Consumer Products on December 4 to focus on how to address antimicrobials in consumer products.  The dialogue is designed to address concerns by NACWA members and other stakeholders about consumer products with ingredients or additives that end up in the sewer system and eventually are released into the environment.  Although the dialogue effort includes all types of potential contaminants from consumer products, this meeting focused on triclosan, nanosilver, and other antimicrobial additives.  Five representatives from the EPA Office of Pesticide Program’s Antimicrobials Division attended the meeting to provide information and their perspectives on the issues.  NACWA members, representatives from other environmental organizations, and a Food and Drug Administration (FDA) representative also attended the meeting.

Triclosan was a major topic of discussion, including the Reregistration Eligibility Decision (RED) process that EPA is currently completing for triclosan.  The Agency accepted public comments earlier this year on its human health and environmental fate and effects risk assessments for triclosan.  In response, many groups commented with concerns about the risk assessments, and a coalition of concerned groups, including several Dialogue partners, urged the Agency to cancel non-medical uses of triclosan.  The meeting included a discussion of EPA’s proposed rule on data requirements for antimicrobial pesticides, which includes a “Down-the-Drain” model that will be used to assess the impacts of antimicrobial pesticides on the wastewater treatment process and the aquatic environment (see Regulatory Alert RA 08-05 for more information).  NACWA will be submitting comments on this proposed rule and asks members to provide input for the comments by December 19.  

Discussions at the meeting also focused on nanosilver, with a representative from the Woodrow Wilson International Center for Scholars providing an overview of the Center’s report, Silver Nanotechnologies and the Environment: Old Problems or New Challenges?.  The report details the underlying chemical and environmental processes that can be used as a starting point for nanosilver risk assessments, and identifies 12 lessons for managing environmental risks from nanosilver.  The International Center for Technology Assessment also provided information about the petition that it and other groups filed in May, requesting that EPA regulate nanoscale silver as a new pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  EPA sought public comment on the petition in a November 19 Federal Register notice, and NACWA plans to submit comments (see related story below).  NACWA and other dialogue partners will continue to look for collaborative ways to reduce the use of antimicrobials and other potentially harmful additives in consumer products.

EPA Requests Comments on Petition to Regulate Nanosilver as a Pesticide

In May, the International Center for Technology Assessment (ICTA) and other groups filed a petition requesting that EPA regulate nanoscale silver as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The petition also includes requests that EPA require formal registration of all products containing nanosilver, evaluate the human health and environmental risks of nanosilver, and take immediate action to prohibit the sale of nanosilver products as unregistered pesticide products.  This petition follows up on previous actions to address nanosilver and other engineered nanoparticles in consumer products, such as NACWA’s letter to EPA concerning washing machines that released silver ions.  EPA eventually responded with a September 21, 2007, Federal Register notice that required registration of equipment that generated silver ions for pesticide purposes.  In a November 19 Federal Register notice, EPA requested public comments on the ICTA nanosilver petition by January 20.  NACWA plans to submit comments on the petition, and members with input for the comments should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  Members that submit their own comments to EPA are also asked to send a copy of their comments to NACWA.

EPA Proposes Adding Pharmaceuticals to Universal Waste Rule

In a December 2 Federal Register notice, EPA proposed adding unused pharmaceuticals to its Universal Waste Program.  The Universal Waste Program (40 CFR Part 273) provides for reduced handling and shipping requirements for wastes normally considered a hazardous waste under the Resource Conservation and Recovery Act (RCRA).  It is unclear, however, whether a designation as universal waste for unused pharmaceuticals will help with the issue of pharmaceuticals in the nation’s waters.  Some stakeholders believe that additional flexibility in the handling of those pharmaceuticals that are hazardous waste could increase the number of companies willing to receive waste pharmaceuticals from local take-back programs, which may in turn encourage more take-back programs to handle household sources of unused drugs.  However, the program does not specifically encourage take-back programs and does not remove any of the other regulatory barriers, such as the Drug Enforcement Agency’s restrictions on controlled substances, to take-back programs.  NACWA is continuing to review the proposal and will work with its Emerging Contaminants Workgroup to determine whether comments are necessary.

Pharmaceutical Dialogue Explores Challenges to Take-back Programs

On December 2 and 3, representatives from EPA, the water sector, pharmaceutical manufacturing, waste management, the Food and Drug Administration, and others convened in Washington, D.C., for the second dialogue meeting facilitated by the Product Stewardship Institute on the issue of unused pharmaceutical management.  The meeting focused its discussions on the barriers to more effective management of unused pharmaceuticals, including existing regulations and policy, such as the Office of National Drug Control Policy’s guidelines, and how they might be addressed.  There remains skepticism among some drug manufacturers and government officials regarding the benefit of take-back programs when compared to the cost and risk associated with the potential diversion of controlled substances, but the group was committed to convening a third dialogue meeting in the near future.  Meeting materials are available online.  For access to some of the materials, use the password “PharmDC”.  NACWA is supporting the Product Stewardship Institute’s efforts through its Critical Issues Action Initiative.

Register Today for NACWA’s 2009 Winter Conference

NACWA’s 2009 Winter Conference, Controlling Chaos: Managing Capital Costs in an Uncertain Economic Environment, scheduled for February 3 - 6, 2009, at the Westin Buckhead Atlanta in Atlanta, Ga., will provide perspective on the current economic roller coaster and examine the management of utility capital programs in uncertain times.  Make your plans to attend today!  Online registration is now available.  Be sure to reserve your hotel room today by contacting the Westin Buckhead Atlanta at 404/365-0065 to guarantee the special conference rate of $209 single/double. Watch your mail and visit NACWA’s website for the most up-to-date information on the 2009 Winter Conference.

EPA Proposes Construction Runoff Effluent Guideline, Delays Airport Deicing Rule

In a November 28 Federal Register notice, EPA proposed technology-based Effluent Limitation Guidelines (ELGs) and New Source Performance Standards (NSPS) for the Construction and Development source category.  The proposed regulation aims to significantly reduce runoff of sediments and other pollutants from construction sites.  All construction sites would be required to implement best management practices (BMPs) for erosion and sediment control.  Construction sites disturbing 10 or more acres at a time would also be required to install sediment basins.  For construction sites of 30 acres or more in areas of high rainfall intensity and high clay content, minimum numeric requirements would be established for turbidity, in addition to the sediment basin requirement.  Although many state and local requirements already exist for construction runoff, EPA envisions the ELG “as requiring an additional layer of management practices and/or treatment above what most state and local programs are currently requiring.”  EPA does not specify what type of technology must be used to meet the numeric limit, but the proposed limits are based on its assessment of what current technologies can reliably achieve.  Construction of utility systems is included in the Construction and Development category.  NACWA members that are planning to comment on the proposed ELGs by the February 26 deadline are asked to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Despite plans to publish a proposed rule for Airport Deicing ELGs in November 2008, EPA is now reportedly waiting until after the Bush administration leaves office to do so.  EPA identified airport deicing operations as a potential new discharge category in its 2004 ELG plan, and the Agency conducted site visits, wastewater sampling, and industry questionnaires from 2004 through 2007.  EPA already missed its original deadline for publishing a proposed rule, even though the 9th Circuit Court of Appeals ruled that the Agency must issue ELGs within three years of identifying the category for guidelines, and it is unknown whether the agency still plans to meet its December 2009 goal for final action.