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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: June 11, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to June 11, 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 Takes Strong Stance on Peak Flows with EPA

NACWA met May 28 with EPA Office of Wastewater Management officials to discuss the Agency's current approach to addressing peak flow blending in Clean Water Act permits and to provide the clean water community’s perspective on this vital wet weather issue. Contrary to its general practice, the Agency is reinterpreting how its decades-old bypass regulation applies to the blending of peak flows, including to several facilities that have opted to install physical/chemical treatment (e.g., ballasted flocculation) for their peak flows. NACWA’s primary concern is that EPA has not notified state permitting agencies or utilities of its new interpretation. Many utilities are planning the construction of these parallel treatment trains either at the direction of their permitting agency or via a consent decree, yet few if any states or utilities are aware that EPA now considers the discharges from treatment plants employing these processes to be illegal. NACWA emphasized during the meeting many clean water agencies, lacking clear guidance from the federal government, did the 'right thing' and invested in treatment for their peak flows. To now penalize those agencies for putting into place technology that their states encouraged and that EPA itself has shown to be effective at treating peak flows simply does not make sense. NACWA is strongly urging EPA to put in writing its interpretation of the bypass and secondary treatment regulations, which will at least provide an opportunity for NACWA’s members to react to and potentially work with EPA to find a mutually acceptable solution.

NACWA is already on the record with the EPA Administrator regarding this issue. 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 (NRDC), has yet to receive approval from the White House’s budget office. The policy did not contemplate the definition of bypass or the status of physical/chemical treatment trains, but proposed a process for utilities to evaluate their options and to preserve the practice of blending where needed. 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 is working to set up a meeting with the new Assistant Administrator for Water to discuss the issue. At a minimum, NACWA is seeking relief for those utilities that have already constructed these parallel treatment facilities and are now up for permit renewal. Additional details are available in Regulatory Alert 09-03.

Air Quality

NACWA Comments on Proposed New Emissions Standards for Reciprocating Internal Combustion Engines

On June 3, NACWA submitted comments  recommending EPA revise parts of its proposed air toxics standards for stationary reciprocating internal combustion engines (RICE), especially those that use digester gas or are used in emergency situations. In the proposed national emission standards for hazardous air pollutants (NESHAP) for RICE, existing engines at both major and area sources would be subjected to stringent carbon monoxide emission limits.

The proposed NESHAP, 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.) Specifically, the new standards apply to all existing RICE located at area sources of hazardous air pollutants (HAPs), those RICE with a site rating of 500 brake hp or less located at major sources of HAPs, and 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 rules state that a low emission limit of 177 parts per million by volume on a dry basis (ppmvd) is required for carbon monoxide at 15 percent oxygen for 50<HP<500 RICE at major HAP sources and HP>500 RICE at area HAP sources. Non-emergency CI engines face various standards, depending on their categorization. Facilities also have new reporting and recordkeeping obligations under the proposed regulations.

NACWA commented that these low emissions levels, while perhaps appropriate for new engines, impose a cost on engine owners that has not been justified in the proposed regulations. In its comments, NACWA noted that using methane on-site to power digester gas engines reduces a facility’s greenhouse gas (GHG) emissions, as methane is a potent GHG. NACWA wrote that instead of having to install expensive controls, “utilities should be encouraged to continue using their existing digester gas engines, rather than face a situation where it is more cost-effective to purchase power from an electric utility and to waste a valuable fuel source by flaring the digester gas.” NACWA also stated that the cost of controls for emergency use engines, which are rarely operated, was not justified in the proposed rule. NACWA supports setting a higher carbon monoxide limit for digester gas and emergency use engines, or establishing maintenance, inspection, and operation standards instead.

NACWA also said that requiring engines to meet the same stringent standards during periods of startup, shutdown, or malfunction (SSM) could be costly and unnecessary, and that more data are needed to justify SSM inclusion in the regulations. EPA bases its decision not to exempt SSM events from the strict emissions standards on a 2008 court decision in Sierra Club v. EPA. In this case, the court ruled that SSM events could not be exempted from emissions standards. EPA still has time to appeal this decision, however, and NACWA commented that “EPA should take more time to collect data on emissions during these events, and on the effectiveness and costs of emissions controls, before finalizing a rule that will prove costly to utilities and other users of stationary RICE.” NACWA will keep members informed on EPA’s decisions regarding the proposed NESAHP for RICE.

Biosolids

NACWA Meets EPA Solid Waste Officials to Discuss Biosolids Incineration

NACWA met May 21 with the key officials in EPA’s solid waste and air offices to discuss an ongoing rulemaking that will dictate how sewage sludge incinerators (SSIs) are ultimately regulated under the Clean Air Act (CAA). As a follow-up to 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 underscored the broad implications of defining biosolids as a solid waste. If biosolids are deemed a solid waste, SSIs could then be regulated under Section 129 of the CAA, an outcome NACWA has advocated against for more than a decade. Regulation under Section 129 could force many of the currently operating incinerators to shut down and would require the remaining units to put in place new pollution control equipment. NACWA has long held that SSIs are more appropriately regulated under Section 112 of the CAA and had been assisting EPA in the development of those regulations when a court ruling vacated several EPA rulemakings regarding incineration of commercial and industrial solid waste.

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 EPA’s Office of Air and Radiation in developing new standards under Sections 112 and 129 of the CAA for incinerators and boilers that would be consistent with the court rulings. During the meeting, NACWA reiterated the arguments it laid out in its February 2 comments, namely that the RCRA statutory definition of solid waste expressly excludes materials dissolved in domestic sewage and should extend to the biosolids produced by clean water agencies. EPA indicated that they are working to develop a regulatory definition that is consistent with the statute, but indicated that the decision on whether biosolids are excluded is complicated and subject to differing interpretations of the statutory definition. The solid waste office is working to meet a July 15 deadline for proposing the new definition as part of a larger air quality regulation. NACWA will be following up with the solid waste office to provide additional information on several issues raised during the meeting. The Biosolids Committee will be discussing this during their meeting at NACWA’s Summer Conference in Milwaukee.

EPA to Release Updated Assessment of Risk from Dioxin

EPA Administrator Lisa Jackson announced on May 26 that the Agency will issue a draft of its long-awaited reassessment of the health effects of dioxins by the end of the year, with a final health assessment completed by the end of 2010. The Agency has reviewed the health effects of dioxins several times, but no final assessment has been issued. Jackson made the announcement concurrently in both a letter  to residents affected by a dioxin-polluted site in Michigan, as well as through a press release. An outline of the EPA Dioxin Science Plan is available on the EPA website.

EPA began its efforts to reassess the risks from dioxin in the early 1990s. The agency has prepared multiple draft reports, in conjunction with the National Academy of Sciences, but has yet to issue a final reassessment report. A draft assessment from 2001 found that while dioxin levels have declined substantially, the risk to people is higher than previously thought, so the new reassessment likely could have impacts for several EPA programs, including the Part 503 regulations for biosolids. While EPA determined in 2003 that no regulations were needed for dioxin and dioxin-like compounds in biosolids, changes to the Agency’s assessment of risk from dioxin could require EPA to revisit the need for dioxin limits in biosolids. NACWA will continue to follow developments relating to the dioxin reassessment and work with EPA’s biosolids office to determine what if any impact it might have on the Part 503 regulations.

Climate Change

NACWA Comments on EPA’s Proposed Greenhouse Gas Reporting Rule

NACWA submitted comments  June 9 on EPA’s proposed rule to establish a new national reporting regime for greenhouse gas (GHG) emissions. The proposed rule was published in an April 10 Federal Register notice . The proposed reporting rule excludes the wastewater treatment process because the estimated emissions from the treatment process, as detailed in a technical support document accompanying the proposal, are generally not expected to exceed the reporting threshold of 25,000 metric tons of carbon dioxide (CO2) equivalents annually at any plant. NACWA supported this exclusion in its comments. Utilities operate various types of units that could be covered under the proposed rule’s stationary combustion category, however, including electricity generating units, boilers, and sewage sludge incinerators. Utilities will need to estimate whether their burning of fossil fuels in these units trips the reporting threshold, and NACWA recommended that “Clearer instructions should be provided indicating when a facility is required to calculate its emissions for comparison against the threshold. The process of calculating a facility’s emissions is not trivial and many clean water agencies have multiple facilities that would require separate calculation.” NACWA provided other suggestions in its comments for clarifications on the type of units that must be included in this category and the calculations that must be made to estimate emissions.

NACWA also recommended that EPA re-evaluate its proposed schedule for implementing the proposed reporting rule. Data collection is scheduled to begin on January 1, 2010, and the first report is due March 31, 2011, which leaves little time for EPA to establish efficient and reliable operating systems for the reporting. As NACWA stated in its comments, “if these reports are to be used as the basis for a future cap-and-trade program, the initial set up of the reporting system must be done carefully.” In addition, entities covered by the rule will have little time to analyze the final rule before beginning to collect data.

The proposed rule currently contemplates a ‘once in, always in’ approach to reporting, but NACWA expressed concern with this approach and recommended “that the proposal include an opt-out provision for facilities that reduce their GHG emissions below the threshold in the future…. These facilities should be able to demonstrate that they are below the threshold and opt out of future reporting unless, for some unanticipated reason, they increase emissions and trip the threshold.” NACWA will notify members about development of the GHG reporting rule and EPA’s response to the Association’s comments.

NACWA Participates in Development of EPA Climate Change Vulnerability Assessment Tool

EPA is adapting the Vulnerability Self Assessment Software Tool (VSAT™), developed by NACWA in 2002, to include a stand-alone climate change module. This module will allow drinking water and wastewater utilities to assess vulnerabilities related to climate change impacts, such as increased precipitation and sea level rise, with the purpose of elevating awareness and generating a provisional set of adaptation options. EPA formed a working group that includes representatives from water sector associations, including NACWA, and representatives from nine utilities. Five of the utility representatives are NACWA members, representing a range of geographic locations and utility sizes. EPA plans for development of the tool to be substantially completed by the end of the year, with pilot testing planned for 2010. NACWA will keep members informed about progress made on developing the tool and its availability for general use.

Emerging Contaminants

NACWA Raises Concerns over Emerging Contaminants Database

The planned public release of a new EPA database on the removal rates of certain emerging contaminants at wastewater treatment plants is raising serious concerns for NACWA’s Emerging Contaminants Workgroup. EPA created the database as part of their study of emerging contaminant concentrations in the influent and effluent of nine wastewater treatment facilities. The database contains published literature on removal rates of emerging contaminants. NACWA provided an initial list of the workgroup’s issues to EPA on May 15 and will be meeting with agency staff in the coming weeks to ask for more details on how the data were selected and how the information will be properly annotated to indicate their limitations. NACWA strongly supports public access to this information but is concerned that EPA’s proposed method of providing that information to the public will result in erroneous and misleading conclusions.

The database would allow users to select a particular wastewater treatment process and receive an aggregate removal rate for each contaminant based on all the published literature in the database for that treatment process. This method of collecting data concerns the Workgroup because it oversimplifies the complex nature of analyzing for these contaminants in a wastewater matrix and could mislead users of the database. NACWA has raised issues with the current analytical methods available for evaluating these chemicals as many of them are still in the development phase and few, if any, of these methods have undergone rigorous inter-laboratory validation. NACWA emphasized that combining removal rates from different studies with potentially different analytical methods, sample type and frequency, and then presenting the result as an aggregated value would require extensive review to ensure the data were of sufficient and similar quality. NACWA understands that only limited review of the data was conducted. Furthermore, media could access the database and misuse the information, creating unnecessary public concern.

NACWA believes a forum is needed for collecting and sharing this type of data to help improve current analytical methods and better evaluate the wastewater treatment plant process, but believes the proposed database is not an appropriate way to share this information. NACWA is requesting that, at a minimum, EPA provide an opportunity to review and comment on the criteria used to either include or exclude data and that if the database is posted online, EPA include detailed qualifying language as to the severe limitations of the system’s outputs.

Facilities and Collection Systems

Green Infrastructure Partnership Meets to Discuss Ongoing Efforts

NACWA participated in a meeting on May 18 with EPA, the Natural Resources Defense Council (NRDC), and American Rivers to discuss each group’s ongoing green infrastructure initiatives. NACWA reported on the success of its April municipal green infrastructure course in West Virginia, which drew clean water utilities from around the country to learn more about how green infrastructure can be implemented at the municipal level. Also discussed were ongoing joint efforts between NACWA, NRDC, and American Rivers to propose green infrastructure legislation that would create a national grant program for green infrastructure projects and fund research and development centers for low impact development techniques across the country. Work is continuing on the draft proposal with a goal of introducing a bill in Congress later this summer. EPA reported on recent efforts to expand and improve its green infrastructure website, which serves as a source of information and guidance on green infrastructure techniques. The Agency is also working on a number of research projects to better quantify the potential environmental and economic benefits of using green infrastructure to control stormwater runoff.

NACWA is providing an opportunity for utilities to discuss their green infrastructure successes and challenges during a roundtable on Friday, July 17, 7:30-8:45 am at the Association’s Summer Conference in Milwaukee (see more information about the conference below). The roundtable will allow utilities to share their own green infrastructure successes and challenges and to inform and advise NACWA’s advocacy in this area.

Meetings and Conferences

June 23 Hotel Deadline Approaching for NACWA Summer Conference

NACWA’s 2009 Summer Conference and 39th Annual Meeting, The New Regulatory Climate. . . Clean Water Agencies Prepare to Act, will focus on the changing regulatory approach to clean water issues and how clean water agencies will be affected. Peter Silva, nominee for EPA Assistant Administrator for Water, is invited to be the keynote speaker for the conference to give his perspectives on the policies EPA will pursue in the coming years. Other featured speakers include Laurent Auguste, President and CEO of Veolia Water North America, and Douglas Smith, President of Engineering and Architecture Services for Tetra Tech, who will discuss how utilities can continue to confront their present challenges while also preparing appropriately for the future. Panel presentations will provide in-depth information and analysis on issues involved with wet weather, nutrients, total maximum daily loads and watersheds, and climate change. The conference will be held July 14-17 at the InterContinental Milwaukee. Reservations for the conference group rate of $189 per night single/double should be made directly with the InterContinental Milwaukee at 414/276-8686 by the June 23 deadline. More information, including an agenda and online registration, are available on NACWA’s Conferences & Professional Development webpage.

Water Quality

Chesapeake Bay Program Announces New Program for Reducing Nutrients

President Obama signed an Executive Order on May 12 that calls the Chesapeake Bay a “national treasure” and establishes a Federal Leadership Committee for the Chesapeake Bay to oversee the work of the agencies participating in protection and restoration of the Bay. The Order states that these agencies should, within the next four months, give a report to the Committee that provides recommendations for improving protection and restoration efforts. Also on May 12, the Chesapeake Bay Program announced a new “Milestones”  approach of short-term goals for reducing nutrients discharged to the Bay. The first milestone is a 6.9 million pound reduction of nitrogen and a 464,000 pound reduction of phosphorus by December 31, 2011. These reductions will be made through improvements in agricultural, wastewater treatment, and stormwater practices. The Executive Order and the new Milestones program both recognize that previous goals for improving water quality in the Bay have not been met.

NACWA is tracking the Chesapeake Bay restoration program, including its impacts on clean water agencies. The Chesapeake Bay situation illustrates how difficult it can be for multiple jurisdictions and agencies to coordinate with each other and to be accountable for improving the health of a watershed. NACWA continues to move forward with its efforts to introduce its 21st Century Watershed Act, and the lessons learned from both the failures and successes of the Chesapeake Bay Program will be important to consider as the Association advocates for more consideration of water quality issues on a watershed basis. NACWA is currently working with environmental organizations on revising the draft Watershed Act, and will keep members informed about progress made.

National Water Quality Monitoring Council Accepting Abstracts for 2010 Meeting

The National Water Quality Monitoring Council (NWQMC) is requesting abstracts for its Seventh National Monitoring Conference – Monitoring From the Summit to the Sea, which will be held April 25-29, 2010, in Denver. The conference will focus on the many facets of water quality and quantity monitoring for improved understanding, protection, and restoration of our natural resources and communities. It will also provide a unique forum for water practitioners from all backgrounds – including governmental organizations, volunteers, academia, watershed and environmental groups, and the private sector – to exchange information, develop skills, and foster collaboration and coordination. Themes for the conference include applying of innovative monitoring, assessment, and modeling tools and approaches; integrating monitoring to cost-effectively support water resource management; and addressing climate, energy, water availability, and other emerging water issues. More information about the conference can be found on the conference webpage. Abstracts must be received by September 19, 2009.