» Update Archive

To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: May 14, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to May 14, 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..

Air Quality 

EPA Proposes New Emissions Standards for Reciprocating Internal Combustion Engines

EPA proposed stringent new National Emissions Standards for Hazardous Air Pollutants (NESHAPs) for Reciprocating Internal Combustion Engines (RICE) that may have a significant impact on wastewater utilities.  The proposed NESHAPs, which would revise 40 CFR part 63, subpart ZZZZ, appeared in a March 5 Federal Register notice ; EPA subsequently extended the comment period to June 3 in an April 14 Federal Register notice .

EPA’s previous NESHAPs for RICE, originally adopted in 2004 and later amended in 2008, applied mostly to new and reconstructed RICE.  The new NESHAPS apply to the following existing engines:

• RICE that are located at area sources of hazardous air pollutants (HAPs);
• RICE that are located a major sources of HAPs and have a site rating of less than or equal to 500 brake hp; 
• Non-emergency compression ignition (CI) engines that are located at major sources of HAPs and have a site rating of greater than 500 brake hp.

The proposed rule would also amend previously promulgated regulations on the operation of stationary RICE during startup, shutdown, and malfunction (SSM).

The March 5 Federal Register notice describes the control technologies that apply to stationary RICE, and EPA views extensive use of oxidative catalysts as the primary method for controlling carbon monoxide (CO) emissions.  CO emissions are generally used as a surrogate for HAPs, and in limited cases, formaldehyde.  The proposed rules recognize that catalysts are not appropriate for landfill and digester-fired engines, but a low emission limit of 177 parts per million by volume on a dry basis (ppmvd) of CO at 15 percent oxygen is still specified for RICE between 50 and 500 hp at major sources of HAPs and for RICE greater than 500 hp at area sources of HAPs.  For non-emergency CI engines, a variety of emissions and maintenance standard are proposed depending on the subcategory (new/reconstructed or existing, area or major source, site rating) of the engine.  Numerous requirements are also proposed for reporting and recordkeeping.

NACWA’s Climate Change and Air Quality Committee has been reviewing the proposed NESHAPs and is concerned about the stringent CO requirements, the strict requirements during SSM events, and the expense of emission controls to meet these requirements.  NACWA will be submitting comments on the proposed NESHAPs, and members are encouraged to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with input for these comments.  Members are also encouraged to submit their own comments to EPA and to send a copy to NACWA.

NACWA Comments on EPA’s Greenhouse Gas Inventory Emissions Estimates

NACWA recommended changes to the methods EPA uses for estimating methane and nitrous oxide emissions from centralized wastewater treatment operations, in comments  submitted April 9 on EPA’s draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2007 (Inventory).  This is the third year that NACWA has reviewed and submitted comments on the annual Inventory, and EPA has responded to NACWA’s comments and in some cases revised their estimation methods to reduce emissions from municipal wastewater treatment.  While NACWA is pleased that EPA has continued to refine the emissions estimates, the Association believes that further improvements can be made to some of the factors used in the Inventory estimates to more accurately reflect actual municipal wastewater treatment emissions for methane and nitrous oxide.  NACWA also recommended that EPA summarize the emissions value for each of three of contributors to the Inventory’s wastewater treatment category:  centralized treatment, septic systems, and industrial treatment.  Currently, the Inventory summarizes the emissions only in terms of  “domestic” and “industrial” treatment.  This recommended change is especially important for methane emissions, because septic systems are the largest contributors — about 84 percent — within the wastewater treatment category.

NACWA met with EPA on April 3 to discuss its January 16 comments  on the expert review draft of the Inventory.  The public review comments contain the same arguments presented previously, with clarifications based on the meeting with EPA.  NACWA’s Critical Issues Action Initiative (CIAI) made it possible to develop the provided the comments and is providing the funds for NACWA’s continued work on the Inventory.

EPA Proposed Finding on Greenhouse Gases May Trigger Clean Air Act Regulations

EPA proposed a public finding  on April 24 that greenhouse gases contribute to air pollution and may endanger public health.  The proposal opens the door for six greenhouse gases — carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride — to be regulated under the Clean Air Act (CAA).   NACWA submitted comments  in November 2008 in response to an EPA advance notice of proposed rulemaking (ANPRM) on greenhouse gases, saying the CAA may not be the best vehicle for regulating these gases.  “The Clean Air Act was meant to address pollutants on a local or regional basis with a focus on improving public health, and its framework cannot account for the global nature of greenhouse gas emissions and climate change,” the NACWA letter said.  Rather, NACWA believes federal legislation, similar to the proposal being floated in the House by Reps. Henry Waxman (D- Calif.) and Ed Markey (D-Mass.), is a better way to respond to climate change.  NACWA’s comments said that climate change should be addressed through a framework that recognizes the strong interrelationship with water resources, the economic impacts of regulations, the need for more research into the potential impacts on water resources, and the need to develop adaptation measures.

The EPA analysis that accompanies its proposed findings shows that climate change may lead to increased drought, more heavy downpours and flooding, greater sea level rise, more intense storms, and harm to water resources, wildlife, and agriculture.  This analysis echoes NACWA’s position that climate change is fundamentally about water, and the impacts to the clean water community will be significant.  NACWA’s Climate Change and Air Quality Committee will evaluate whether to submit comments on the proposed finding by the end of the comment period on June 23.

Biosolids

NACWA Expresses Concern over Arsenic Risk Evaluation

NACWA expressed concern in an April 27 letter  to the Acting Assistant Administrator for the Office of Research and Development at EPA that the Agency’s ongoing Integrated Risk Information System (IRIS) evaluation of inorganic arsenic [Toxicological Review of Inorganic Arsenic (CASRN 7440-38- 2)] is not following established agency procedures, nor adhering to the agency’s standards for due consideration of external and internal peer-review comments by technical experts.  NACWA’s letter noted that the Agency is not providing sufficient opportunity for public comment and is acting inconsistently with recent policy statements from the Administrator.  The draft of the IRIS evaluation proposes a dramatic increase in the cancer slope factor (CSF). NACWA’s letter highlighted that its members manage thousands of pounds of sewage sludge or biosolids on a daily basis in accordance with the 40 CFR Part 503 regulations, which require that biosolids not exceed specific levels of key pollutants, including arsenic, for various management methods, including land application of treated biosolids, disposal, and incineration.  A change in the arsenic CSF would likely lead to a review of and possible change in EPA’s Part 503 pollutant levels.  NACWA believes that EPA must act cautiously to ensure that all of its existing procedures are being followed to provide ample opportunity for review and comment for a decision that could have extraordinary regulatory burden and cost implications.

Emerging Contaminants

EPA Begins Testing Program for Endocrine Disruptors in Pesticides

EPA published April 15 a list  of 67 pesticide ingredients subject to initial screening under the Endocrine Disruptor Screening Program (EDSP).  A companion notice  outlined the policies EPA intends to adopt to screen the ingredients, ranging from which manufacturers or registrants will receive screening orders to how penalties will be assessed for failing to comply.  The EDSP was established under section 408(p) of the Federal Food, Drug, and Cosmetic Act (FFDCA), which requires endocrine screening of all pesticide chemicals.  NACWA has been tracking EPA’s work to first establish test methods for determining endocrine disruption and then to identify which of the tens of thousands of suspected endocrine disruptors EPA would choose to start testing.  The 67 pesticide ingredients were chosen for the initial round of testing because they are high production volume (HPV) chemicals and are often found in the environment.  The screening program has been criticized for its failure to test a single chemical since being initiated in 1996.  NACWA has supported the idea of a screening program as a way to identify chemicals of concern before they are introduced into the environment, but it seems likely that the initial round of testing, anticipated for later this year, may be further delayed due to challenges from the manufacturers who will be required to conduct the testing.  NACWA will continue to track the testing program to determine how the results may inform Clean Water Act regulatory programs.

Facilities and Collection Systems

NACWA Urges EPA to Halt Implementation of Proposed Peak Flows Policy

In a May 1 letter  to EPA Administrator Lisa Jackson, NACWA requested that EPA instruct its Headquarters and Regional Office staff to discontinue using the 2005 proposed peak flows policy for the purposes of issuing Clean Water Act permits.  The proposed policy, based on the negotiated agreement between NACWA and the Natural Resources Defense Council, has yet to receive approval from the White House’s budget office, without which finalization is blocked, but the policy is nevertheless apparently being implemented by the EPA Regions at the direction of Office of Water and Office of Enforcement and Compliance Assurance staff at EPA Headquarters.  In December 2008, NACWA requested clarification of EPA’s current position on blending in a letter  to Benjamin Grumbles, then the EPA assistant administrator of water, but EPA has yet to respond directly to the letter.  NACWA has now learned that EPA intends to use the existing bypass regulations with the proposed policy as guidance to issue permits for treatment plants currently employing blending.  In NACWA’s letters to Grumbles and Jackson, the Association expressed concern that permitting decisions are now being based on a proposed policy – with potentially massive financial consequences for municipalities – which the current Administration has not approved, clarified, or finalized.

NACWA has been urging the Agency to develop a comprehensive national policy for sanitary sewer systems, similar to what was done for combined sewers in the 1990s, which would address the issue of blending but, more importantly, the critical issues of overflows, peak excess flow treatment facilities, collection system management, and other issues.  Development of such a broad-based policy was simply not viable in the previous administration.  As a result, NACWA and NRDC entered into negotiations on the narrower issue of peak flow blending in order to at least move the ball forward on wet weather policy.  As noted in the letter to Jackson, NACWA understands that the Office of Water may again be considering work on a comprehensive national policy for sanitary sewer systems, which could address overflows, blending, and other wet weather-related issues.  NACWA welcomes a meaningful dialogue with EPA and other stakeholders on all the issues surrounding sanitary sewer system management.  Until a comprehensive national policy can be developed, NACWA will be working with EPA and its members to find a workable solution for ensuring that blending can be authorized in a Clean Water Act permit.

EPA Webcast to Focus on CSO Controls for Small Communities

The EPA CSO Program is continuing its webcast series with a webcast focusing on small communities and the options available to them under the CSO Control Policy for developing the nine minimum controls and long-term control plans (LTCPs).  The webcast will also provide an overview of the LTCP-EZ Template, a tool that can help communities prepare their LTCPs.  Speakers will be Tim Schmitt from LimnoTech, Mohammed Billah from EPA, and Jim Collins from Tetra Tech.  The webcast will be held from 1:00 to 3:00 pm Eastern time on June 24.  Registration is free, but is required in advance.  Registration and more information is available on EPA’s website.

Meetings and Conferences

NACWA’s Summer Conference to Focus on New Regulatory Climate

NACWA’s 2009 Summer Conference and 39th Annual Meeting, The New Regulatory Climate. . . Clean Water Agencies Prepare to Act, will take place July 14-17 in Milwaukee.  This Great Lakes location will be a fitting backdrop for discussions of the shifting regulatory focus on clean water issues.  The new Administration has already cited the Great Lakes as a priority for protection and restoration, and EPA Administrator Lisa Jackson said recently, “As the Great Lakes go, so goes national policy with respect to water.” The conference program will explore how clean water policy may be changing and how utilities must be prepared to move forward with new roles and responsibilities.  Clean water agencies have the opportunity to become environmental leaders on issues such as nutrients, watershed management, and pharmaceuticals.  These issues framed NACWA’s Critical Issues Action Initiative (CIAI) and will be highlighted during the conference.  Registration and more information are available on NACWA’s Conferences & Professional Development webpage.

Security and Emergency Preparedness

NACWA Participates in Effort to Develop Water Sector Emergency Response Tool

NACWA members are playing an important role in the Preparedness, Emergency Response, and Recovery CIPAC (Critical Infrastructure Partnership Advisory Council) Workgroup that met on April 22-23 to continue developing an all-hazards consequence management planning (CMP) guidance document for the water sector.  Patricia Cleveland, manager of operations for the Northern Region of the Trinity River Authority of Texas and a NACWA Board member, as well as the Association’s representative on the Water Sector Coordinating Council, co-chairs the workgroup.  Talyon Sortor, assistant general manager for the Fairfield-Suisin Sewer District and vice chair of NACWA’s Security and Emergency Preparedness Committee, is also a member of the workgroup.   The CMP guidance will be a useful tool to help wastewater and drinking water utilities of all sizes in their emergency preparedness planning.  The document will likely include action checklists and major lessons learned regarding the consequences that result from a broad suite of hazards, along with references to existing documents that contain more detailed information.  The workgroup will also evaluate preparedness, emergency response, and recovery priorities for the sector and identify actions needed to implement priorities.  Work on this project will be completed by the end of the year.