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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: February 13, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2009 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to February 12, 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 Comments Oppose Designation of Sludge Destined for Incineration as Solid Waste

NACWA filed comments on February 2 urging EPA not to include sewage sludge or biosolids under its Resource Conservation and Recovery Act (RCRA) definition of non-hazardous solid waste.  If biosolids are deemed a solid waste under this rulemaking, biosolids or sewage sludge incinerators (SSIs) would be regulated under Section 129 of the Clean Air Act (CAA), an outcome NACWA has advocated against for more than a decade.  EPA announced in a January 2 Advance Notice of Proposed Rulemaking (ANPRM) (74 Fed. Reg. 41) that it was seeking comment on the meaning of “solid waste” under RCRA as it applies to non-hazardous wastes as a way to assist its Office of Air and Radiation in developing standards under Sections 112 and 129 of the CAA for incinerators and boilers.  The ANPRM specifically asked for comments on whether a long list of secondary materials, including biosolids, should be considered solid waste for the purposes of CAA regulation.

At issue are a series of regulatory determinations regarding commercial and industrial solid waste incinerators (CISWIs) that also affect SSIs.  A June 2007 decision from the D.C. Circuit Court of Appeals in Natural Resources Defense Council v. EPA resulted in the remand of two key regulations to the Agency for more consideration.  The case involved EPA’s past determinations on which incineration units should be handled under Section 112 versus section 129 of the CAA.  The court indicated that any incinerator burning solid waste (whether for energy recovery or not) must be regulated under Section 129.  Also affected by this litigation was an EPA regulation directing that SSIs be covered under the less onerous Section 112 of the CAA.  

NACWA’s comments highlighted that solid and dissolved materials in sewage are specifically excluded from RCRA because they are already strictly regulated under the Clean Water Act’s Part 503 regulations governing the incineration of biosolids.  EPA must resolve the issue soon because several actions mandated by court-ordered deadlines relating to the CISWI rules are pending.  NACWA responded quickly to the tight comment deadline through the Targeted Action Fund, and will keep its members apprised of new developments as they occur.

Air Quality & Climate Change

NACWA Provides Expert Review of EPA Greenhouse Gas Inventory

On January 16, NACWA submitted comments on EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2007, Expert Review Draft (Draft Inventory) outlining how to estimate emissions of methane and nitrous oxide from publicly owned treatment works (POTWs) more accurately.  The wastewater treatment category of the Inventory consistently ranks as one of the top sources for nitrous oxide and methane emissions in the nation, although the emissions are much smaller in magnitude than for the highest ranked categories.  It is important to note, however, that the wastewater category is broad, including municipal wastewater treatment, septic systems, and industrial wastewater treatment.  NACWA’s review focused on the portion of the wastewater treatment emissions from municipal facilities, which are a fraction of the total wastewater treatment emissions.  

NACWA completed reviews and submitted comments on the previous two annual Inventories, and EPA has met with NACWA and considered the Association’s suggestions.  NACWA recommended that EPA adjust the factors used in the estimates for both methane and nitrous oxide, which has led to a reduction in the emissions estimates for POTWs over the last two years.  NACWA has also suggested a change of methodology for the nitrous oxide estimates.  EPA currently uses theoretical assumptions based on protein consumption, while NACWA prefers an approach based on measured nitrogen loading rates to POTWs.  “Although EPA’s general methodology has not changed in the current Draft Inventory,” NACWA’s comments stated, “several values used in the calculations of nitrous oxide emissions have been adjusted, resulting in lower emissions estimates for POTWs.”  NACWA is pleased with these adjustments, which bring EPA’s estimates much closer to estimates obtained with the Association’s preferred data-based approach.  As requested by EPA, NACWA’s comments provided more information on this data-based approach, including a literature review to support the Association’s position and detailed information on the emissions measurements performed at a member agency’s facility that was included in the nitrogen loading data NACWA provided to EPA last year.

NACWA’s comments on the Draft Inventory were funded through the Association’s Critical Issues Action Initiative.   NACWA will continue to work with EPA on this important issue as part of its strategy to address climate change and its potential impacts on the clean water community and will submit additional comments in April on the public review draft of the Inventory.

POTWs Included in Petition for EPA to Review Emissions Standards

The Natural Resources Defense Council (NRDC) and the Sierra Club petitioned EPA on January 14 to reopen Clean Air Act national emission standards for hazardous air pollutants (NESHAPs) for over 30 industrial categories, including POTWs.  The 1999 NESHAP for POTWs did not impose any new maximum achievable control technology (MACT) standards on existing POTWs, but required new or reconstructed POTWs that are major sources of hazardous air pollutants (HAP) to install covers on all treatment processes before secondary treatment.  NACWA worked closely with EPA in establishing this standard.  The NRDC and Sierra Club petition alleges that such “no control” HAP provisions are unlawful and that EPA must establish minimum emission limits for every HAP and HAP-emitting process in a NESHAP category.  NACWA will follow developments with this petition and keep members informed of any potential impacts to clean water agencies.

Biosolids

EPA Releases Targeted National Sewage Sludge Survey

EPA last month released the report from its Targeted National Sewage Sludge Survey (TNSSS).  NACWA has been closely tracking EPA’s efforts to finalize the report and has provided input to EPA several times over the past year.  The report and associated documents are now available on EPA’s Biosolids Web Page.

The TNSSS updates the Agency’s information on the pollutant levels in biosolids and also provides the first national estimates of which pharmaceuticals, steroids, and hormones may be present in sewage sludge and at what concentrations.  Using the information from the TNSSS, EPA is now determining what additional analysis or risk assessment is needed.  As its first priority, the Agency is using the survey information to assess molybdenum and the nine pollutants identified from its 2003 biennial review as needing updated concentration information to determine whether additional action (i.e., potential regulatory limit) may be necessary.  In addition to the survey information, EPA will evaluate other available data and conduct exposure and hazard assessments for these pollutants if sufficient data are available.  NACWA’s Biosolids Management Committee has reviewed the report and will be working closely with EPA to obtain the findings of EPA’s assessments and learn what additional pollutants may require closer scrutiny.

Meetings and Conferences

Register Now for the 2009 NACWA Pretreatment and Pollution Prevention Workshop

Online registration is now available for the 2009 NACWA National Pretreatment and Pollution Prevention Workshop, March 25-27, at the Hilton Charlotte University Place in Charlotte, North Carolina.  With a theme of Pretreatment and Source Control – Providing the Foundation for Clean Water’s Future, the Workshop will provide information about traditional pretreatment issues while also highlighting the emerging source control issues that are becoming increasingly important to pretreatment programs and clean water agencies.  Several panel presentations will focus on source control issues, including the control of antimicrobials, such as triclosan and nanosilver, which are used in a multitude of consumer products; using amalgam separators to control mercury discharges from dental offices; and control of emerging contaminants for a water reuse program.  Issues associated with the growing role of pretreatment programs in stormwater management will also be discussed.  In addition, senior staff from EPA national headquarters will update participants on the direction of the National Pretreatment Program under the new administration.  

For the first time, NACWA is offering a discounted registration fee for additional registrations from the same organization.  To receive this discount, registrants should complete the paper registration form and submit their registrations together via mail or fax.  Contact the Hilton Charlotte University Place directly at 704/547-7444 by the March 3 deadline to receive the special group rate of $149.  More information, including a draft agenda for the Workshop, is available on NACWA’s Conferences and Professional Development webpage.

Regulatory Policy

Obama Administration Orders Overhaul of Regulatory Process

On January 30, President Barack Obama wrote to the head of the Office of Management and Budget (OMB), along with the top officials from all the Executive Departments and Agencies, on the need for an appropriate regulatory review process.  President Obama specifically directed the head of OMB to produce within 100 days a set of recommendations for the development of a new Executive Order on federal regulatory review.  Originally issued by President Clinton in 1993, Executive Order 12866 has provided the roadmap for the regulatory review process.  President Bush modified the Order when he took office in 2001, dramatically increasing OMB’s role in determining the form of final regulatory actions.  

With EPA likely to pursue more rulemakings under President Obama than under President Bush, finding the right balance for OMB’s role in the rulemaking process will be critical.  President Obama has appointed Cass Sunstein to head the Office of Information and Regulatory Affairs at OMB.  Sunstein has previously endorsed the use of cost-benefit analyses in reviewing regulations, which could have both pros and cons for the municipal community.  A balanced cost-benefit analysis may help protect NACWA members from onerous or unnecessary regulation, but such analysis in the past has also hindered NACWA efforts, most notably the proposed peak flows policy.  NACWA will follow the Administration’s efforts to develop a new Executive Order and keep members apprised of important developments.

Water Quality

National Water Quality Inventory Report Now Available

EPA recently released its National Water Quality Inventory Report (Report), which summarizes water quality assessments submitted by the states to EPA under section 305(b) of the Clean Water Act.  The Report finds that states assessed 16 percent of the nation’s 3.5 million river and stream miles, 39 percent of its 41.7 million acres of lakes, ponds and reservoirs, and 29 percent of its 87,791 estuary square miles during the 2004 reporting cycle.  Forty-four percent of assessed river and stream miles, 64 percent of assessed lake acres, and 30 percent of assessed estuary square miles were found to be impaired for one or more of the uses designated for them by the states.  Leading causes of impairment included pathogens, mercury, nutrients, and organic enrichment/low dissolved oxygen.  Top sources of the pollutants causing the impairments included atmospheric deposition, agriculture, hydrologic modifications, and unknown or unspecified sources.

This impairment information will be useful for NACWA in its work to promote new and innovative approaches to water quality improvement, including a watershed approach.  NACWA’s Strategic Watershed Task Force met last week to discuss the 21st Century Watershed Act that the Association will be seeking to introduce in Congress later this year.  The Task Force has recognized that although overall water quality is much improved since the Clean Water Act was passed over 35 years ago, there is still a lot of work to be done to address the many sources of water quality impairments.  The Task Force has also recommended that designated uses and methods of measuring impairment be updated.

NACWA Continues to Push for Peer Review of New Nutrient Standard Methodology

Since sending a letter to former EPA Administrator Stephen Johnson on September 29, 2008, requesting a peer review of a controversial new methodology for developing nutrient standards, NACWA has continued to push for an open review process that would allow stakeholders to formally engage the peer reviewers.  The methodology was developed, and has been recently used, by EPA Region III to develop a total maximum daily load (TMDL).  Other states are also considering the new approach and EPA has expressed its intent to include it in national guidance.  NACWA’s September 2008 letter expressed concern with the scientific validity of the new approach, especially its reliance on a new and untested data evaluation procedure and its failure to demonstrate a causal link between the stressor and the observed ecological impact.  NACWA has learned that EPA is planning to conduct a peer review process that would not allow stakeholders to present information directly to the peer reviewers and NACWA is working with other groups to seek a more open process.