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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: August 10, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to August 10, 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 to Include NACWA in Enforcement Policy Review

In response to a July 29 letter  from NACWA, EPA’s Office of Enforcement and Compliance Assurance (OECA) has stated that NACWA input will be included in the development of a new action plan for increased transparency and effectiveness in Clean Water Act enforcement.  NACWA’s letter responded to Jackson’s July 2 memorandum, Improving Water Quality Transparency and Effective Enforcement of Clean Water Act Requirements, which directed OECA to develop an action plan to enhance both the effectiveness and the public transparency of state and federal enforcement actions under the Clean Water Act (CWA).  The memo specifically called for state groups such as the Environmental Council of the States (ECOS) and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) to participate in the development of the policy, but did not include consultation with any municipal groups, whose members, including NACWA’s public agency utility members, would be most directly affected by any resulting product.  NACWA’s letter emphasized the important partnership between EPA and the clean water community in achieving the CWA’s goals and stated that “NACWA’s public wastewater utility members are on the front lines of environmental protection… we believe it is imperative that the municipal clean water community have a voice in the upcoming discussions over how to improve both the effectiveness and the transparency of Clean Water Act enforcement.”  NACWA will keep members informed about the development of this plan and the Association’s recommendations to EPA.

Biosolids

NACWA Ramps up Advocacy Efforts on Sewage Sludge Incinerators

Since learning last month that EPA’s Office of Resource Conservation and Recovery (ORCR, formerly the Office of Solid Waste) will likely propose a definition of solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) that includes biosolids, NACWA has been working on multiple fronts to determine the extent of the impacts for biosolids management and to persuade EPA to explore other options.  NACWA’s Board of Directors approved the hiring of several experts through the Association’s Targeted Action Fund (TAF) to develop the arguments to be made with EPA and achieve a positive result for utilities.  The ORCR rulemaking was initiated to determine how sewage sludge incinerators (SSIs) should be regulated under the Clean Air Act (CAA), but an EPA regulation stating that biosolids are solid wastes could have broader consequences.  The most significant impact of EPA’s definition will be the required air emission controls for SSIs.  EPA’s clean air office intends to regulate all solid waste incinerators under the more onerous Section 129 requirements and in response to ORCR’s preliminary determination that biosolids that are incinerated are solid wastes, the EPA Office of Air and Radiation is proceeding with a separate rulemaking to develop stringent CAA standards for SSIs.  NACWA has been closely following this effort since 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.  NACWA filed comments  on the ANPRM urging EPA to exclude biosolids under its definition of non-hazardous solid waste and has met with key EPA officials to provide additional information on the impacts of such a decision.

EPA is under a court-ordered deadline to propose the new definition of solid waste by September 15 in order to resolve a legal challenge involving EPA’s previous rulemakings on commercial and industrial solid waste incineration, but NACWA has learned that ORCR may ask for more time to work on its definition.  A critical element of ORCR’s work is determining the extent to which energy is recovered from the biosolids incineration process.  Sewage sludge that is burned for energy recovery would not be considered ‘discarded’ under the current approach and would, therefore, not trigger the solid waste definition.  NACWA is providing ORCR with information on current energy recovery practices as well as future options for using biosolids as a fuel to ensure a final definition provides sufficient flexibility.  NACWA is also planning meetings with senior level officials in the Office of Solid Waste and Emergency Response (OSWER), which oversees RCRA implementation, to discuss the impacts for SSIs.

NACWA has long held that SSIs are more appropriately regulated under Section 112 of the CAA as area sources and had been assisting EPA in the development of those regulations when a 2007 D.C. Circuit Court ruling called into question EPA’s justification for regulating certain incinerators, not SSIs, under Section 112 instead of Section 129.  Though EPA had decided earlier in 2007 to regulate SSIs under Section 112, the Agency felt its reasoning for that determination was also affected by the 2007 court ruling.  Based on ORCR’s preliminary determination that SSIs are burning solid waste, EPA is now working to develop maximum achievable control technology (MACT) standards (under Section 129) for SSIs by October 15.  NACWA is working closely with EPA as they develop these standards, providing information on the incineration process and emissions data.  NACWA is working to ensure that any MACT standards are as flexible as possible and will meet with EPA in Research Triangle Park, North Carolina later this month to discuss the standards.

Climate Change

NACWA Members Lend Expertise to EPA Climate Change Efforts

Representatives from five NACWA member agencies met with EPA on July 29 to discuss the Agency’s development of a stand-alone climate change module for the Vulnerability Self Assessment Software Tool (VSAT™), developed by NACWA in 2002.  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.  NACWA’s members joined other utility representatives and staff from water sector associations, including NACWA, to give EPA recommendations on what climate change impacts should be included in the tool and how the tool would be best used by utilities.  EPA plans for development of the tool to be substantially completed by the end of the year, with pilot testing planned for 2010.

EPA is also forming a working group through the National Drinking Water Advisory Council (NDWAC) to evaluate the concept of “Climate Ready Water Utilities.”  The NDWAC advises the EPA Administrator on all drinking water-related matters, and the new working group will define and develop a baseline understanding of how to use available information to develop climate change adaptation and mitigation strategies, as well as identify climate change-related tools, training, and products that address short- and long-term needs of utility managers, decision makers, and engineers.  NACWA has nominated representatives from three member agencies to serve on this NDWAC working group, and EPA expects the group to complete its work within the next year.  NACWA will keep members informed about the progress made for both of these EPA projects and about other EPA climate change actions.

Emerging Contaminants

NACWA/AMWA Convene First Meeting of Pharmaceutical Peer Review Panel

Top experts on the issue of emerging contaminants gathered from around the country on July 9 at NACWA for the first meeting of the peer review panel formed by NACWA and the Association of Metropolitan Water Agencies (AMWA).  The panel is charged with developing recommendations on how to address the issue of pharmaceuticals in water.  Initiated and funded as a part of NACWA’s Critical Issues Action Initiative (CIAI), the panel will now work to develop a report for the water sector and national policymakers on the state of knowledge regarding the potential health and ecological implications of pharmaceuticals in water, options for source control and treatment if needed in the future, and key information gaps that must be addressed before regulatory action can be taken.  The panel heard presentations from a US Geological Survey expert, key policy and research officials from EPA, and a representative from the pharmaceutical industry.  The panel is now working on an initial draft of its report and will convene again in early September.  NACWA and AMWA expect to have a final report ready for their respective memberships in early November.

Facilities and Collection Systems

NACWA Preparing Comments on EPA Guidance for Peak Flows

NACWA is preparing comments on EPA’s Draft Guidance on Preparing a Utility Analysis  (Draft Guidance), a 40-page document designed to assist utilities in preparing the ‘no feasible alternatives’ analysis EPA now requires before any peak flow blending scenario can be approved in a Clean Water Act permit, and requested member input on the Draft Guidance via Regulatory Alert 09-04.  Other than the proposed 2005 peak flows policy, the Draft Guidance provides the only written explanation of EPA’s current interpretation of the bypass regulations – that any diversion of wet weather flows around secondary treatment units, whether directly discharged or recombined with secondary effluent, is considered a bypass.  The Draft Guidance, however, goes further than the 2005 proposed peak flows policy to state that any wet weather flow diversions, including those receiving additional treatment (e.g., ballasted flocculation, chemically enhanced primary, etc), that cannot meet the 30-day secondary treatment standards before recombination, are bypasses.  If a clean water agency can demonstrate through the Draft Guidance’s detailed utility analysis outlined in the Draft Guidance that there are no feasible alternatives to the bypass, then it can be approved as an anticipated bypass in the facility’s permit.  EPA’s regional offices and state water program managers are also reviewing the Draft Guidance.

While the Draft Guidance encourages utilities to evaluate the use of technologies for treating peak flows, including parallel treatment like ballasted flocculation, EPA states in the guidance that it “strongly discourages reliance on peak wet-weather diversions around secondary treatment units as a long-term, wet-weather management approach.”  By requiring auxiliary treatment units to meet full secondary standards before recombination to avoid the bypass determination, the Agency is creating a huge disincentive to installing additional treatment.  NACWA’s comments on the Draft Guidance will highlight this as a major issue.  It points to EPA’s unfounded concern that utilities will simply install these auxiliary treatment units and ignore maintenance in the collection system.  As NACWA has advocated for more than a decade, issues concerning the collection system should be addressed through a comprehensive sanitary sewer overflow policy, not via a policy designed to address peak flow management at the plant.  NACWA will meet with Peter Silva, the newly confirmed EPA assistant administrator for water, later this month to discuss a possible resolution and will be sending EPA comments on the Draft Guidance by August 14.

Security and Emergency Preparedness

Recommendations Released for Top Flu Vaccination Priorities; Planning Guidance Available

The Centers for Disease Control (CDC) has released a priority list for H1N1 influenza (“swine flu”) vaccinations when they become available, and the Department of Homeland Security (DHS) has released a water sector preparedness, response, and recovery guide for pandemic influenza.  The CDC vaccination recommendations are based on age groups, rather than by occupation.  The top priority groups are pregnant women, people in regular contact with children younger than six months, health-care and emergency medical services workers, everyone six months to 24 years old, and people aged 25 to 64 with a high risk condition, such as an underlying health issue.  Once these priority groups have received the vaccination, the vaccine should be offered to healthy adults aged 25 to 64, and then to people 65 and older (adults over 65 years appear to be protected already due to flu strains that circulated several decades ago).  The priority groups were chosen because they were the groups that had the most severe health consequences from the H1N1 virus during the outbreak that occurred this Spring.

Water sector personnel were listed as a Tier 2 vaccination target group for moderate and severe pandemics in the 2008 DHS and Health and Human Services (HHS) Guidance on Allocating and Targeting Pandemic Influenza Vaccine , due to the work of NACWA and other water sector associations in calling attention to the vital role of water utility personnel.  During a webcast on August 4 that featured HHS Secretary Kathleen Sebelius, DHS Secretary Janet Napolitano, and Education Secretary Arne Duncan, NACWA asked if this guidance would still be followed, with water sector personnel classified as Tier 2 after the initial priority groups.  The panel responded that this guidance was still being followed, but that it provides for flexibility based on the science of a particular influenza strain.  While vaccine supplies are still limited, the most at-risk groups will need to be at the front of the line for vaccinations, and state and local governments will ultimately decide how the vaccine will be distributed.  The panel emphasized that adults with any type of chronic health problem, such as asthma or diabetes, fall into the priority category of people aged 25 to 64 with a high risk condition, even if their underlying health problem is under control.  Utilities should encourage personnel who fall into one of the priority groups to be immunized as soon as the vaccine is available.

DHS has released a pandemic influenza Preparedness, Response, and Recovery Guide for Critical Infrastructure and Key Resources, which includes an annex  for water and wastewater utilities.  With the onset of the new flu season expected in the next one to two months, utilities should review this guide and their own pandemic preparedness plans.  NACWA will continue to track the influenza vaccination status, and utilities should also take this opportunity to contact their state health departments with a reminder of the importance of water sector personnel.

Water Quality

NACWA Briefed on Revisions to Ammonia Criteria

NACWA met July 8 with officials in the EPA Office of Science and Technology (OST) to discuss the agency’s ongoing efforts to revise the 1999 water quality criteria for ammonia, which could have major implications for many clean water utilities.  A study from 2003 on the sensitivity of freshwater mussels to ammonia raised concerns that the existing criteria may not be protective enough, and EPA has been working over the past several years to evaluate the data and determine whether a revision is necessary.  NACWA provided its members with additional information on the effort to revise the criteria via Regulatory Alert 07-03 and submitted comments to EPA outlining the Association’s concerns with the use of the new data and recommending several considerations for flexibility in implementing a potentially more stringent criterion.

During the meeting, EPA indicated it was relying less on the data with which NACWA was concerned but that other, more reliable data had confirmed the sensitivity of certain freshwater mussels to ammonia levels in water.  In addition, the agency is considering several implementation issues, including varying impacts depending on temperature, and the possibility that a bifurcated criterion, with more stringent values where the sensitive mussel species are present, may be appropriate.  EPA solicited additional data on the issue in 2007.  Since that time, it has been working to reassess the current criterion.  In 2008, OST formed a workgroup with EPA Office of Research and Development experts to discuss specific technical data issues related primarily to the larval and juvenile stages of the freshwater mussels that were being evaluated and developed position statements on how these data would be considered in aquatic life criteria derivation.  Those position statements were peer reviewed, and EPA is now developing a draft criteria reassessment document considering the recent mussel toxicity data and other new information.  A peer review of that document is now underway and the draft reassessment will be released for public comment this fall.

EPA Releases Literature Review Findings, Announces Meeting on Recreational Water Quality Criteria and Risk

EPA recently released the findings of two literature reviews conducted to help inform development of new or revised recreational water quality criteria by 2012.  The first document, Review of Published Studies to Characterize Relative Risks from Different Sources of Fecal Contamination in Recreational Waters, describes the existing information available to characterize the relative risks of human illness from various sources of fecal contamination in recreational waters.  The second document, Review of Zoonotic Pathogens in Ambient Water, provides a summary of information on waterborne zoonotic pathogens that come primarily from warm-blooded animals.  Both documents are available on EPA's website.

EPA also recently announced the next public meeting on the Agency’s efforts to develop new or revised recreational water quality criteria.  NACWA has been following the Agency’s efforts closely to ensure they are following the terms of the settlement agreement reached in August 2008 in Natural Resources Defense Council v. EPA, a case involving EPA’s failure to develop new recreational water quality criteria as required by Congress in the Beaches Environmental Assessment and Coastal Health Act (BEACH Act).  NACWA will participate in the public meeting, which is being held in Chicago and the InterContinental Chicago on October 6-7.  The meeting will begin at 1:00pm on October 6 and will conclude at approximately 3:00pm on October 7.  For more information on the meeting, go to EPA’s website.

SAB Review of New Nutrient Standard Methodology Scheduled for September

NACWA has learned that EPA’s Science Advisory Board (SAB) will convene September 9-11, to review a controversial new methodology for developing nutrient standards, among other nutrient-related issues.  NACWA and several other stakeholders sent letters  to EPA requesting the review last fall.   The methodology was developed, and has been recently used, by EPA Region III to develop total maximum daily loads (TMDL) for several streams in Pennsylvania.  Other states are also considering the new approach, which relies on statistical analyses to draw linkages between nutrient concentrations and macroinvertebrate populations, rather than looking at plant growth.  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 will attend the September review and plans to provide comments to the panel.