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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: March 16, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to March 16, 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

EPA Greenhouse Gas Reporting Rule Excludes Wastewater Treatment, May Cover Combustion Units

EPA released a proposed rule on March 10 to establish a massive new reporting regime for greenhouse gas emissions from industrial sectors. The proposed rule appears to exclude the wastewater treatment process, according to NACWA’s initial review of the more than 800 pages of preamble and 500 pages of regulatory language. NACWA had met with EPA on this proposal and has been actively engaged in the agency’s efforts to develop the rule because clean water agencies had been included in the inventory of emitters potentially subject to reporting. Using the Targeted Action Fund (TAF), and more recently the Critical Issues Action Initiative (CIAI), NACWA was provided valuable data that resulted in refinements to the emissions inventory and ensured that any regulations based on the estimates reflect the true contribution of greenhouse gases from the municipal wastewater sector.

NACWA believes wastewater treatment would not be covered because the estimated emissions from the treatment processes are generally not expected to exceed the reporting threshold of 25,000 metric tons of carbon dioxide (CO2) equivalents annually at any plant. However, NACWA is working to clarify how the reporting rule may apply to electricity generating units, boilers, and sewage sludge incinerators that clean water agencies operate. The rule appears to require utilities to estimate and report emissions from “stationary fuel combustion sources” that produce electricity or heat, or that reduce waste volume by burning, among other things, fossil fuels, biogas, and sewage sludge. The key to whether these specific practices may be subject to reporting is the threshold of 25,000 metric tons of CO2 equivalents annually. The rule provides a series of equations and assumptions that must be used to determine whether emissions need to be reported. NACWA is evaluating the applicability of the rule to determine its scope and impact on the clean water community and will be working with its Air Quality and Climate Change Committee and Biosolids Management Committee to provide members with more information. EPA is providing a 60-day comment period from the time of the proposal’s upcoming publication in the Federal Register, as well as a public hearing in Washington April 5-6 and one in Sacramento on April 16.

In a related matter, EPA announced the release of the draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2007 (Inventory) in a March 10 Federal Register notice . In January, NACWA submitted comments on the expert review draft of the Inventory, outlining how to estimate emissions of methane and nitrous oxide from municipal wastewater treatment more accurately. The CIAI has provided the funding for these comments and for NACWA’s continued work on the Inventory. NACWA is reviewing the newest version of the Inventory and will prepare comments by the April 9 deadline.

Biosolids

NACWA to Meet with Air, Solid Waste Officials on Incineration

NACWA will be meeting with EPA air and waste officials to follow up on comments filed 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. NACWA is concerned that EPA’s waste office does not understand the broad implications of its decision for a large number of regulated entities under the Clean Air Act. If biosolids are deemed a solid waste under the proposed rulemaking, 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. NACWA will update members on the results of the meeting after it occurs.

Climate Change

NACWA Primer Provides Carbon Trading Information for POTWs

NACWA released its climate change primer, Getting Into the Game: How POTWs Can Take Advantage of Carbon Trading, to help municipal clean water utilities better understand the challenges and opportunities presented by emerging carbon markets. The primer, funded through NACWA’s Critical Issues Action Initiative (CIAI), provides an overview of carbon markets and carbon trading, including descriptions of allowances, offsets, and the standards that apply to carbon trading. Generation of offsets by POTWs is addressed, with guidance given on how to value the offsets. Analysis on the legal issues that clean water utilities should consider when evaluating entry to the carbon market is also provided. More information about the primer is available in Member Update 09-03, and a complimentary download of the primer is available for NACWA members.

Emerging Contaminants

NACWA Comments Seek Better Coordination on Unused Pharmaceutical Management

NACWA called for more coordination at the federal level on a comprehensive strategy for managing unused pharmaceuticals in March 4 comments to EPA. Responding to EPA's proposed addition of unused hazardous pharmaceuticals to its Universal Waste Rule, NACWA highlighted the many disparate activities currently underway at the federal level on the issue of unused pharmaceuticals. With the White House’s Office of National Drug Control Policy, the Drug Enforcement Agency (DEA), and two offices in EPA each undertaking efforts to examine the management of unused pharmaceuticals, NACWA underscored the need for a coordinated national strategy. NACWA’s comments supported the universal waste designation of unused hazardous pharmaceuticals, but noted that it would only address a small subset of pharmaceuticals and would potentially cause more confusion among managers of pharmaceuticals unless more outreach is done. NACWA member agencies that manage pharmaceutical take-back programs most likely will not benefit from the universal waste designation because much of the material they collect is exempt as household hazardous waste, and most of the obstacles to municipal take-back programs arise from the handling of controlled substances. NACWA’s Emerging Contaminants Workgroup is developing comments on a separate proposal from the DEA dealing with the Controlled Substances Act and how it affects management of unused pharmaceuticals, and the Workgroup will continue its efforts to improve coordination among the federal agencies.

Meetings and Conferences

National Clean Water Policy Forum to Feature New Clean Water Policy Leaders

An agenda and registration information for the 2009 National Clean Water Policy Forum, sponsored by NACWA and the Water Environment Federation (WEF), May 3-6, at the Renaissance Washington Hotel in Washington, D.C., are now available on NACWA’s website. The Forum provides a unique opportunity to hear the latest federal legislative, regulatory, and legal developments straight from those who influence and craft national policy. Planned speakers for the Forum include the leaders and staff from key congressional committees and from EPA. In addition to the program of invited speakers, Forum attendees will have the opportunity to discuss specific clean water issues with staff from EPA and other federal agencies during the Technical Roundtable Breakfast. Contact the Renaissance Washington Hotel directly at 202/898-9000 to reserve your hotel room by April 13 at the special conference rate of $289 single/double.

CSO Workshop to Address Wet Weather Management Trends and Solutions

Registration is now available for the 2009 Combined Sewer Overflow (CSO) Workshop with an agenda designed to provide unparalleled information for CSO communities struggling with management of wet weather issues. The Workshop, scheduled for April 22-24 at The Drake Hotel in Chicago, Ill., is jointly sponsored by NACWA and the Wet Weather Partnership. Topics to be discussed at the Workshop include an overview of regulatory and legislative action under a new President and Congress, discussion of schedules and performance capability of CSO long-term control plans, and analysis of the impact of the recent economic downturn on financial capability. The Workshop will also feature a new opportunity this year for participants to attend a series of breakout sessions on the first day of the conference addressing a variety of CSO issues, such as a CSO primer for newcomers to the field, an update on federal and state CSO enforcement issues, and green infrastructure challenges and opportunities. These sessions will be structured to allow for discussion and a sharing of ideas between participants and will be an excellent opportunity to talk with fellow clean water professionals about wet weather issues. More information about the Workshop can be found on the Wet Weather Partnerships website. Registration for this Workshop often fills up early, so be sure and sign up today!

Green Infrastructure Course Registration Deadline Approaching

The March 23 registration deadline for NACWA’s upcoming municipal green infrastructure course is quickly approaching. The course, How Green Is My Infrastructure: A Regional Approach to Municipal Planning & Investment, was developed jointly by NACWA and The Conservation Fund and will be held April 14-16 at the National Conservation Training Center in Shepherdstown, W.V. The curriculum emphasizes how utilities can initiate, fund, construct, and maintain green infrastructure projects to address their water supply and water quality needs. Since the goal of the course is to educate members from all sectors of municipal government about the benefits of green infrastructure and ensure that there are multiple “champions” of green infrastructure in communities, NACWA members are encouraged to send both utility representatives and officials from other municipal agencies, including those from the local planning commission, public works department, city council, or mayor’s office. Limited scholarship funds are available to assist these community partners in attending. Additional information about the course, including how to register, can be found on the The Conservation Fund’s website.

Security and Emergency Preparedness

NACWA Participates in Efforts to Improve Utility Emergency Preparedness and Resiliency

NACWA is part of two Critical Infrastructure Partnership Advisory Council (CIPAC) workgroups that are aimed at improving the partnership between utilities and federal, state, and local governments to protect drinking water and wastewater utilities from all hazards. NACWA participated in the March 3 CIPAC Strategic Roadmapping Workshop to build a “Strategic Roadmap for a Secure and Resilient Water Sector,” which will contain a unified strategy for improving critical infrastructure protection in the water sector. During the Workshop, representatives from EPA, the Department of Homeland Security (DHS), utilities, and associations identified the likely security concerns over the next 10 years, the highest risk scenarios, and actions that are needed to mitigate risks.

NACWA is also participating in the ongoing CIPAC Preparedness, Emergency Response, and Recovery Workgroup, which is developing an all-hazards consequence management planning guidance document for the water sector. This Workgroup is also evaluating water sector preparedness, emergency response and recovery priorities, and the actions needed to implement these priorities. Patty Cleveland, one of NACWA’s representatives on the Water Sector Coordinating Council (WSCC), is co-chair of this workgroup. NACWA will keep members informed about the progress of these two CIPAC workgroups and other developments regarding security and emergency preparedness at water utilities.

Water Quality

EPA Agrees to Peer Review of Controversial Procedure for Developing Nutrient Criteria

EPA announced that it will request a full Science Advisory Board (SAB) review of a controversial procedure now being used to develop nutrient criteria after NACWA and several other stakeholders have consistently encouraged EPA to conduct the review. EPA initially agreed to a limited peer review that would not have permitted NACWA to directly engage with the review panel, but changed course after meeting with the Association and other groups in recent weeks. EPA says the full SAB review will allow for both written comments and verbal presentations at a public meeting to ensure that stakeholder scientific perspectives are considered. NACWA’s September 2008 letter to then EPA Administrator Stephen Johnson 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 (nutrients) and the observed ecological impact. The methodology was developed and has been recently used by EPA Region III in Philadelphia 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 Water Quality Committee will be closely tracking EPA’s efforts to convene the SAB panel — though EPA has not yet determined a timetable for this effort — and will be working to develop formal comments.

NACWA Continues to Track Possible Ammonia Criteria Revisions

Since 2007 (see Regulatory Alert 07-03), NACWA has been tracking EPA’s efforts to revise its aquatic life criteria for ammonia. Since NACWA’s last meeting with EPA in April 2007, EPA has been working to evaluate the existing scientific information to determine if a revision to the criteria is necessary in light of recent toxicity data on freshwater mussel sensitivity. During 2008, EPA’s Office of Water formed a workgroup with experts from EPA’s Office of Research and Development (ORD) to discuss specific technical data issues and develop proposed position statements on how these data would be considered in aquatic life criteria derivation. NACWA understands that those position statements and supporting rationale were peer- reviewed and that EPA is now developing a draft criteria reassessment document, based on the peer reviewers’ comments, considering the recent mussel toxicity data and other new information. The draft criteria reassessment document will be reviewed by ORD and the U.S. Fish and Wildlife Service, and then externally peer-reviewed this spring or summer. Following the external peer review, EPA expects to make revisions to the criteria reassessment, with the goal of publishing a draft criteria reassessment and requesting scientific views in the Federal Register this fall. NACWA has requested that it be alerted to the start of the external peer review and will update the members when it learns more about EPA’s plans.

NACWA and NGOs Seek to Collaborate on Watershed, Nonpoint Source Issues

NACWA met with representatives from the Environmental Law and Policy Center (ELPC), the Natural Resources Defense Council (NRDC), and the Iowa Natural Heritage Foundation on February 26 to discuss potential joint advocacy efforts on watershed and nonpoint source issues. The meeting focused on ways the different organizations can collaborate to improve water quality through better control of nonpoint and agricultural sources. The organizations provided some input on NACWA’s forthcoming Watershed Act and are prepared to work with NACWA on a joint white paper or statement of principles regarding the need to better regulate nonpoint sources. The meeting was a continuation of a dialogue started last year between NACWA, ELPC, and NRDC on ways to address the growing problem of agricultural and nonpoint source water pollution.

NACWA continues work on several related nutrient efforts, including its Critical Issues Action Initiative (CIAI) project to outline the legal and technical arguments against modifying the definition of secondary treatment to include nutrient removal. NACWA is also tracking EPA’s efforts to aid states in developing numeric nutrient criteria, including recent developments in Florida where EPA has indicated it will promulgate criteria for the state if it fails to do so before the end of the year.