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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: January 15, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the January 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 15, 2009. 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.

Top Story

NACWA Signs MOU with EPA, Dental Association to Improve Handling of Mercury

NACWA, the American Dental Association (ADA), and EPA signed a Memorandum of Understanding on December 28 committing the three organizations to work together to decrease mercury discharges from dental clinics by encouraging them to adopt ADA’s best management practices (BMPs) for dental amalgam waste. Earlier this year, EPA decided not to develop national pretreatment standards for dental clinics due to the declining use of mercury in amalgam fillings and the many local efforts already underway to control this source. The MOU seeks to further improve dental clinic handling of mercury in areas of the country where local programs have not already been developed. NACWA stressed throughout development of the MOU that the agreement would not affect local clean water agency authority to impose more stringent requirements, if needed, to protect their treatment plants and/or the environment. The MOU encourages dental offices to follow the ADA’s best management practices, which include installing and maintaining an amalgam separator and recycling of the collected amalgam waste. The three MOU parties also committed to establishing performance goals and tracking the percentage of dental offices that install and use amalgam separators. NACWA will work with ADA and EPA over the next year to ensure that meaningful goals for increasing the use of the BMPs among the dental community are established.

Air Quality & Climate Change

NACWA Voices Research and Adaptation Needs at EPA Climate Change Workshop

NACWA participated in the January 6-7 First National Expert and Stakeholder Workshop on Water Infrastructure Sustainability and Adaptation to Climate Change, which focused on research needs for utilities seeking information on adaptive management and capital planning, and how practical decision tools can be developed in both the short- and long-term using existing and future research. The Workshop, hosted by EPA’s Office of Water and Office of Research and Development, was attended by utilities, academics, consultants, associations, EPA staff, and other regulators. Representatives from NACWA member agencies gave presentations on how their utilities are planning to adapt to climate change impacts and were key participants in the discussions that occurred on research and adaptation needs.

A major topic of discussion at the Workshop was how to address the uncertainties presented by climate change. More research is needed to enable downscaling of climate models to local levels, allowing utilities to determine what types of precipitation and temperature changes to expect in the future. The uncertainty in model predictions must also be quantified to allow for proper design and planning. Education on how the water sector will have to adapt to variable changes in climate would help to build government and public support for necessary adaptation measures. Participants also emphasized the importance of coordinating research conducted by EPA and other institutions and of developing decision tools that utilities can use in both adaption and other planning. One type of tool that is needed is a method for evaluating the net environmental benefits of water quality improvements, such as combined sewer overflow (CSO) control, advanced nutrient removal, and green infrastructure, to compare the water quality gains to the impacts of the solution on the municipal carbon footprint. EPA will prepare a summary report of the Workshop, which NACWA will forward to members, and the Association will keep members informed of EPA actions regarding climate change and adaptation research.

Biosolids

EPA Seeks Comment on Solid Waste Definition, Impacts for Biosolids Incineration

In a January 2 Advanced Notice of Proposed Rulemaking (Notice; 74 Fed. Reg. 41), EPA announced that it is seeking comment on the meaning of “solid waste” under the Resource Conservation and Recovery Act (RCRA) as it applies to non-hazardous wastes to assist the Agency’s Air Office in developing standards under Sections 112 and 129 of the Clean Air Act (CAA) for incinerators and boilers. At issue are a series of regulatory determinations regarding commercial and industrial solid waste incinerators that have also impacted biosolids or sewage sludge incinerators (SSIs). A decision issued June 8, 2007 by the D.C. Circuit Court of Appeals in Natural Resources Defense Council v. EPA resulted in the remand of two key regulations back to the Agency for more consideration. At issue in the case were EPA’s past determinations regarding which incineration units should be handled under Section 112 versus 129. The court indicated that any incinerator burning solid waste (whether for energy recovery or not), must be regulated under Section 129. Included in this litigation was a rule in which the Agency had determined that SSIs should be covered under the less onerous Section 112 of the CAA. The January 2 Notice is seeking comment on whether a long list of secondary materials, including biosolids, should be considered solid waste for the purposes of CAA regulation. Comments on the Notice are due by February 2 and NACWA is working to prepare comments that outline why biosolids are not solid wastes and should not be regulated under Section 129.

Facility and Collection Systems

NACWA Seeks Clarification from EPA on Blending Policy Implementation

NACWA sent a letter to EPA Office of Water Assistant Administrator Benjamin Grumbles December 19, asking for clarification on how EPA Headquarters is instructing its Regional Offices to address blending/peak flow treatment scenarios in permits that they review. NACWA has learned that Region 7 has been directed by Headquarters to implement the proposed peak flows policy that has not yet been finalized due to concerns raised by the White House’s Office of Management and Budget. Specifically, Region 7 is instructing its states to require ‘no feasible alternative’ facility analyses for any peak flow treatment trains. Based on our understanding of the situation in Region 7, the proposed policy is being used in a manner inconsistent with what NACWA believes is the intent of the compromise approach it developed with the Natural Resources Defense Council (NRDC). NACWA and NRDC wrote to EPA in October 2006 indicating that a final policy would need to be accompanied by additional guidance in the form of fact sheets and a Q&A (questions and answers) document to further clarify the intent and applicability of the policy, but the proposed policy is now apparently being implemented without the benefit of this additional guidance. NACWA expressed concern that Clean Water Act permitting decisions are now being based on a proposed policy that the current Administration has not approved and finalized – an approach that could have potentially massive financial consequences. NACWA is seeking clarification on EPA’s instructions to the Regions and will seek to have EPA issue additional guidance on the intent of the policy if it insists on using a proposed document to make final permitting decisions.

Meetings and Conferences

Register Today for NACWA’s 2009 Winter Conference

NACWA’s 2009 Winter Conference, Controlling Chaos: Managing Capital Costs in an Uncertain Economic Environment, is fast approaching! Join your clean water colleagues February 3-6, 2009 at the Westin Buckhead in Atlanta, Ga. This year’s Conference will explore critical perspectives on the current economic downturn, and examine the management of utility capital programs in uncertain times and how utilities are changing the way they plan their capital spending to stretch their limited resources. The knowledge and perspectives shared will be invaluable to your utility in dealing with the complex economic situation. Space is limited – additional information on the Winter Conference including a detailed agenda and online registration is available on NACWA's website. Also, be sure to contact the Westin Buckhead Atlanta at 404/365-0065 before January 23 to secure your room at the special group rate of $209. We look forward to seeing you in Atlanta!

Plan Now to Attend the NACWA 2009 Pretreatment and Pollution Prevention Workshop

Start making your plans to attend the NACWA 2009 National Pretreatment and Pollution Prevention Workshop, March 25-27, at the Hilton Charlotte University Place in Charlotte, North Carolina. This year’s Workshop will feature EPA Headquarters’ staff updates on national pretreatment issues, including the current detailed study for the Effluent Limitation Guidelines program of unused pharmaceutical disposal practices in the health services industry and the development of Performance Measures for pretreatment programs. The always-popular EPA Regional Roundtable Luncheon will once again be held, providing an opportunity for Workshop participants to talk informally with their regional EPA Pretreatment Coordinators. Panel presentations are also planned for a variety of other topics, such as stormwater issues affecting pretreatment programs, certification opportunities for pretreatment professionals, and control of antimicrobials such as triclosan and nanosilver from consumer products. A draft agenda for the Workshop will be available soon on NACWA’s Conferences & Professional Development webpage.

Pretreatment and Pollution Prevention

EPA Extends Deadline for Upgrading Electronic Document Systems

In a December 24 Federal Register notice , EPA extended the Final Cross-Media Electronic Reporting Rule (CROMERR) deadline to submit an application to revise or modify authorized programs with existing electronic document receiving systems. The deadline has been extended from October 13, 2008, to January 13, 2010. The CROMERR final rule, published in an October 13, 2005, Federal Register notice , established a framework for EPA acceptance of electronic reports from regulated entities, which would affect POTWs that receive electronic reports from their industrial users under the National Pretreatment Program. The new 2010 deadline is only for submittal of an application related to existing electronic reporting systems, not a deadline for implementing an upgraded or revised system that complies with the CROMERR. The rule does not require the establishment of an electronic reporting program and would only affect NACWA members who are currently accepting electronic reports from their industrial users under the pretreatment program or members who wish to establish an electronic reporting program. EPA has asked NACWA if any POTWs have experienced problems with instituting electronic reporting by their industrial users, or had problems with getting a desired program approved through the CROMERR. NACWA members with input or comments on this subject should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/296-9836.

Security and Emergency Preparedness

Metrics Reporting Demonstrates Proactive Security Stance of Water Sector

The Water Sector Coordinating Council released a report , Water Sector Measures Analysis, containing the results of utility reporting on the security metrics developed by a Critical Infrastructure Partnership Advisory Council (CIPAC) workgroup. The reporting results showed that utilities exhibit substantial attentiveness to preparedness, awareness, and resiliency from potential security threats and natural disasters. The Department of Homeland Security (DHS) requested that all sectors develop and complete reporting on security metrics, and the water sector is the first to complete to process. NACWA participated in the CIPAC metrics workgroup and NACWA’s Security and Emergency Preparedness Committee gave input into the development of the metrics and the voluntary reporting system.

The security metrics reporting received 94 responses from wastewater utilities in 31 states and 297 responses from drinking water utilities in 46 states. Combined utilities completed separate reporting for their water and wastewater operations, and 59 of the wastewater utility responses were from combined utilities. The majority of wastewater responses were received from very large (more than 100,000 customers), and all responses except one were from utilities with more than 3,300 customers. Over 80 percent of utilities had completed all of the voluntary security and resiliency practices asked about by the metrics, such as establishing physical and procedural controls to safeguard hazardous chemicals, restricting access to facilities, securing and monitoring perimeters, and evaluating disinfection methods with consideration of water quality, public health, and security issues. The results help to demonstrate that the water sector has been very proactive in taking security measures and developing the security awareness of utilities. The voluntary metrics reporting will be conducted annually, and the results will be used to inform EPA and DHS about the state of security measures in the water sector.

DHS Releases Revised National Incident Management System Document

DHS released a revised version of the National Incident Management System (NIMS) document last month. NIMS provides a consistent, systematic approach for all levels of government, the private sector, and nongovernmental organizations (NGOs) to work together to prevent, respond to, and recover from the effects of all types of emergency incidents. NIMS and the National Response Framework (NRF) are directly related, with NIMS providing the template for managing incidents and the NRF providing the structure for national-level policy for incident management. The revised NIMS document incorporates contributions from stakeholders and lessons learned during recent incidents. It includes preparedness concepts and principles for all hazards and standardized resource management procedures for enabling coordination among different jurisdictions or organizations, and these and other aspects of NIMS may be useful to clean water agencies in their emergency planning. More information is available on the DHS NIMS Resource Center website.

Water Quality

National Research Council Releases Roadmap for Cutting Nutrient Discharges to the Gulf

The National Research Council (NRC) of the National Academies of Science (NAS) released its report, Nutrient Control Actions for Improving Water Quality in the Mississippi River Basin and Northern Gulf of Mexico on December 11, urging the U.S. EPA and U.S. Department of Agriculture (USDA) to jointly establish a Nutrient Control Implementation Initiative (NCII) to learn more about the effectiveness of actions meant to improve water quality throughout the Mississippi River basin and the northern Gulf of Mexico, among other recommendations. NACWA is reviewing the report in the context of its ongoing Critical Issue Action Initiative project on nutrients and its continuing advocacy efforts to address nonpoint sources of nutrients.

Key highlights from the report include the following:

1. There will be a considerable time lag – at least a decade – between nutrient reduction actions in the River Basin and ecological/water quality responses in the Gulf.
2. Nutrient control efforts should be targeted to areas of higher nutrient loadings.
3. Major municipal and industrial point sources should be required to monitor nitrogen and phosphorus concentrations in their effluents, as a condition of their National Pollutant Discharge Elimination System (NPDES) permits.
4. As part of the Initiative, EPA and USDA should identify a group of Basin priority watersheds for initial actions, including nutrient control pilot projects.
5. Resources from existing USDA conservation programs (the Conservation Resource Program, the Conservation Security Program and the Environmental Quality Incentives Program) should be drawn upon to help support the Initiative pilot projects. Use of other USDA and EPA resources should also be considered, along with leveraging of state matching funds and private sector funding.

Significantly, the report also found that nonpoint sources account for almost 90% of the nutrient loadings to the river basin, primarily from agricultural use of fertilizers. Of the point source loadings, it is estimated that 64% are from municipal wastewater treatment plants and at least 25% from industrial sources.

NACWA Evaluating Implications of New Memo on Mixing Zones

NACWA is working to determine the possible implications of a new memorandum from EPA’s Office of Science and Technology on the use of mixing zones for rivers and streams designated for primary contact recreation. The memo states that it is EPA’s long-standing policy that mixing zones are inappropriate where they may pose significant health risks or where they may endanger critical areas including drinking water supplies or recreational areas. EPA notes in the memo that such a ‘significant health risk’ could be presented where a mixing zone has been approved for bacteria in rivers and streams designated for primary contact recreation, effectively prohibiting mixing zones for bacteria in any water with a contact recreation or swimming designation. While the memo is intended to apply to treatment plant discharges, it could have implications for combined sewer overflow and stormwater discharges. NACWA is working to obtain clarification from EPA on the applicability of the memo to these discharges.