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

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

NACWA Comments to Science Board on Problems with EPA Nutrient Criteria Guidance

NACWA raised serious concerns September 9 at a meeting of the EPA Science Advisory Board’s (SAB) Ecological Processes and Effects Committee about new guidance developed by EPA’s Office of Water and Office of Research and Development on statistical methods for deriving numeric nutrient criteria.  NACWA submitted comments  to the committee noting that EPA’s Empirical Approaches for Nutrient Criteria Derivation , while providing an overview of several statistical methods that could be used in criteria derivation, falls well short of actually enabling states to characterize the effects of nutrients in the nation’s rivers and streams and develop meaningful nutrient criteria.  NACWA highlighted the important management decisions and major capital investments that would need to be made at the nation’s clean water agencies to help reduce nutrient over-enrichment as a result of these criteria and stressed that we must be able to ensure that these investments will actually result in significant water quality improvements.

NACWA is particularly concerned about EPA’s use in the guidance of a variety of statistical tools, including a new, highly controversial approach called conditional probability, to link nutrient levels to in-stream impacts.  EPA would use these tools to directly link nutrient levels to impacts on macroinvertebrates.  Historically, nutrient criteria have focused on linking nutrient levels to plant growth, not to aquatic life, largely because many external factors can also affect the health of aquatic life.  Initially used in several total maximum daily loads (TMDLs) in EPA Region III, the statistical methods are now being proposed for application nationwide in the EPA guidance under review by the SAB Committee.  NACWA and others who commented to the SAB Committee noted that simply showing that two variables are correlated does not mean they have a causal link between them.  Developing nutrient criteria requires analyses that are environmentally significant, not just statistically significant.  Discussions during the meeting indicated that committee members were also concerned that EPA’s document failed to address the complex relationships between nutrient levels and in-stream impacts.  NACWA expects the committee to recommend major revisions to the guidance and it is anticipated that the committee will meet once more via teleconference before issuing its recommendations.

NACWA Requests Meetings with Water, Air and Waste Office Heads on Incineration

NACWA outlined detailed arguments against the regulation of sewage sludge incinerators (SSIs) under Section 129 of the Clean Air Act in a September 9 letter  to the assistant administrators for EPA’s water, air, and waste offices.  The letter also highlighted the major consequences if EPA decides to define solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) to include sewage sludge, and requested a meeting with all three offices to discuss the issue further.  Despite previous determinations that SSIs are more appropriately regulated under Section 112 of the Clean Air Act (CAA), a 2007 ruling by the United States Court of Appeals for the District of Columbia Circuit that severely limited EPA’s discretion when determining how to regulate incinerators prompted EPA to change course on SSIs.  To meet its obligations under the DC Circuit Court’s ruling, EPA initiated a rulemaking to define solid waste under the nonhazardous waste provisions of RCRA.  NACWA highlighted the importance of Office of Water involvement in the ongoing rulemaking efforts during its September 10 meeting with Assistant Administrator for Water Peter Silva.

EPA plans to use the new definition it is crafting to determine how certain incinerators will be regulated under the CAA — units deemed to be burning “solid waste” will be regulated under the more onerous Section 129, while those units burning legitimate fuels,  i.e., not solid wastes — will be regulated under Section 112.  EPA’s preliminary finding is that sewage sludge bound for incineration is a solid waste.  NACWA’s letter was developed using Targeted Action Funds to underscore how such a decision would undermine the carefully constructed balance among the regulatory programs implementing the Clean Water Act (CWA), including the Part 503 biosolids regulations, the CAA, and RCRA.  While EPA was planning to issue this month its proposed definition of solid waste under Subtitle D of RCRA, the Agency has secured an extension to key court-ordered deadlines that will allow NACWA more time to meet with EPA personnel on the issue.  NACWA is working to set up meetings with the impacted EPA offices and will alert the members to any developments.

Biosolids

NACWA Briefs EPA Air Office on Incineration, Biosolids Management

NACWA briefed key technical officials from EPA’s Office of Air Quality Planning and Standards (OAQPS) in Research Triangle Park, N.C., August 25 regarding the Agency’s ongoing work to develop maximum achievable control technology (MACT) standards for SSIs under Section 129 of the CAA.  Despite previous determinations that SSIs are more appropriately regulated under Section 112 of the CAA, a 2007 DC Circuit ruling, that severely limited EPA’s discretion when determining how to regulate incinerators, has prompted EPA to change course on SSIs.

During the meeting, NACWA Biosolids Management Committee Co-Chair Bob Dominak, residuals and air emissions manager for the Northeast Ohio Regional Sewer District, presented a comprehensive overview of biosolids management and a detailed look at incineration, how the basic units operate, how the Part 503 regulations were developed, and how SSIs are already regulated by the CWA and various provisions in the CAA.  NACWA plans to continue its dialogue with OAQPS staff to ensure any standards developed are based on the most current information while it maintains an aggressive advocacy effort at EPA Headquarters to persuade policy makers that regulation of sewage sludge as a solid waste is inappropriate and that control standards under Section 129 would be duplicative and overly burdensome on many SSIs (see related story above).

Climate Change

NACWA Meets with Budget Office on Greenhouse Gas Reporting Rule

NACWA met with the White House Office of Management and Budget (OMB) on September 11 to discuss the Association’s concerns about EPA’s proposed greenhouse gas reporting rule.  EPA sent the draft final rule, which would establish national reporting requirements for entities that emit over 25,000 metric tons of carbon dioxide equivalents each year, to OMB for review on August 20.  Although the rule explicitly excluded emissions from the wastewater treatment process, clean water agencies could be covered under the rule’s stationary combustion category because of the various types of units that they operate, including electricity generating units, boilers, and sewage sludge incinerators.  NACWA submitted comments  to EPA in June on the proposed rule .

At the meeting with OMB, NACWA reiterated the points made in the comments to EPA.  The current reporting rule implementation schedule, with data collection beginning on January 1, 2010, and first emissions reports due in March 2011, does not give covered entities enough time to review the final rule and establish appropriate data collection or monitoring procedures, or for EPA to establish a comprehensive reporting system.  NACWA recommended that this aggressive schedule be slowed down.  NACWA requested that the rule provide clearer instructions for when a facility must perform the complicated combustion unit emissions calculations for comparison against the reporting threshold.  NACWA also asked that the rule include an opt-out provision for facilities that initially have emissions above the reporting threshold, but later reduce their greenhouse gas emissions below the threshold.  NACWA will inform members of any new information as it becomes available.

Emerging Contaminants

EPA Releases Study of Emerging Contaminants at POTWs

EPA released a report September 3 on a multi-year sampling effort at nine publicly owned treatment works (POTWs) examining influent and effluent concentrations of emerging contaminants (including pharmaceuticals and personal care products, steroids/hormones, flame retardants, pesticides, and alkylphenol ethoxylates).  EPA’s report contains the analytical results and detailed information on each of the nine plants, including full treatment diagrams.  EPA briefed the Association and members of its Emerging Contaminants Workgroup on the study earlier this year.  During the briefing, EPA noted that selection of the POTWs for sampling was not random and did not represent the characteristics of a typical secondary treatment plant.  In fact, EPA sought out POTWs with a range of treatment levels, including plants with advanced treatment and a variety of disinfection processes.  EPA also evaluated different sludge ages to determine whether longer detention times would affect removal of the contaminants. 

When the EPA sampling study began several years ago, the Agency focused on POTWs with a large industrial component.  The original intent of the study was to collect data on more than emerging contaminants, including priority pollutants, in an effort to provide new information that might update the decades-old ‘50 POTW’ study that has been used as the basis for pretreatment standards development.  Midway through the study, however, EPA noted that it was not finding many of the emerging contaminants, either because the high industrial flows were diluting the influent or because their analytical methods were not performing well.  At that point, EPA worked to refine its analytical methods and began to focus solely on emerging contaminants and to target treatment plants with more residential flows, specifically in areas such as retirement communities where prescription drug use may be higher. 

NACWA’s Emerging Contaminants Workgroup is reviewing the report and will comment on the study and/or meet with EPA as needed.  EPA is not publicizing the release of the report given its limited usefulness and currently has no plans to conduct similar studies.

Enforcement

NACWA, OECA Discuss Clean Water Act Enforcement Action Plan

Members of NACWA’s Board and committee leadership held a conference call on August 24 with EPA’s Office of Enforcement and Compliance Assurance (OECA) to provide the perspective of the municipal clean water community in developing an action plan for CWA enforcement.  The call was held in response to a July 2 memorandum from EPA Administrator Lisa Jackson calling for increased transparency and effectiveness in CWA enforcement actions, and a July 29 follow-up letter  from NACWA to EPA requesting to participate in the development of the new enforcement initiative.

During the call, NACWA expressed concern with EPA’s current approach that measures success based solely on the number of enforcement actions carried out and the dollar value of complying with them.  NACWA said such an approach is not sustainable and does not prioritize improvements to water quality.  Rather, OECA should work with NACWA to develop an enforcement approach that focuses more on measurable water quality improvement and public health.  NACWA also emphasized that enforcement activity should be tailored to meet the water quality needs of a particular area and not rely on a “one-size-fits-all” national approach.  Additionally, the financial resources of a community would be more wisely spent on innovative projects that result in measurable water quality improvements and not directed towards enforcement action with minimal environmental benefits.  NACWA also stressed the importance of accurate water quality data in making CWA enforcement actions more transparent for both regulated facilities and the general public.

NACWA expressed its interest in working with OECA as both a partner and a resource during development of any new CWA enforcement program in an effort to ensure the perspectives of the municipal clean water community are incorporated.  The Association is also compiling written comments received in response to Legal Alert 09-02 regarding development of the CWA enforcement action plan to submit to OECA next week.

Facility and Collection System

NACWA Submits Blending Comments; Urges EPA to Rethink its Approach

NACWA submitted comments  August 13 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 required by EPA before any peak flow blending scenario can be approved in a CWA permit.  The Draft Guidance relates to the implementation of the draft 2005 peak flows policy that was never made final and reportedly reflects the Agency’s “latest thinking” on blending and the existing bypass regulations as they apply to diversions around the secondary treatment process.  NACWA sought member input for its comments in the July 29 Regulatory Alert (RA 09-04).

In its comments, NACWA pointed out that it was inappropriate for EPA to issue guidance based on a new interpretation of the bypass regulations that has never been officially formalized and then to use that interpretation and guidance to implement a policy that has never been made final.  “The current approach EPA is taking, implementing a massive new wet weather program that seeks to drive collection system upgrades and require every drop of wastewater to receive biological treatment, through a process that side-steps the Administrative Procedures Act (APA) via an extremely stringent re-interpretation and reversal of a decades-old regulation simply is not appropriate or workable,” NACWA’s comments said. “EPA will remain on questionable legal ground if it continues to implement a proposed policy via draft guidance that imposes millions of dollars of costs on the Nation’s municipalities.  NACWA continues to believe that there is an opportunity to address collection system issues with a comprehensive national policy on sanitary sewer overflows, but to date EPA has been unwilling to confront that challenge head-on.”

EPA’s 2005 draft blending policy reflected an agreement reached by NACWA and the Natural Resources Defense Council (NRDC) after lengthy negotiations.  However, the policy got caught up in the White House Office of Management and Budget review process and was never made final.  NACWA said it was submitting its comments “with the understanding that a final policy statement from EPA Headquarters on the issue of blending and the application of the existing bypass regulations to diversions around the secondary treatment process will be issued before the nation’s wastewater utilities will be asked to conduct such analyses.”  NACWA briefed Assistant Administrator Silva on the blending issue during a September 10 meeting with the new water chief and will keep the membership updated on any developments.

Security and Emergency Preparedness

New Guidance Released for Flu Season Preparations

New guidance was released this week by the Department of Health and Human Services’ (HHS) Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to help utilities, as providers of an essential service and major employers, plan for the upcoming flu season.  Outbreaks of both the novel H1N1 flu (“swine flu”) and seasonal flu are expected this fall and winter, and the CDC is urging businesses to take a strong role in preventing and mitigating the spread of the flu viruses.  Businesses should encourage all employees and their families to receive vaccinations for the seasonal flu, which are already available to the public. 

Employees and their family members who fall into priority groups for H1N1 immunization should get the vaccination as soon as it is available.  Priority groups include pregnant women, children younger than six months and their caretakers, everyone six months to 24 years old, people aged 25 to 64 with an underlying health condition, and health-care and emergency medical services workers.  Good hygiene practices, such as coughing and sneezing into a sleeve rather than a hand, should also be encouraged, as well as frequent hand washing with soap and water.  The new guidance also recommends that businesses re-evaluate sick leave policies to allow employees with flu symptoms to stay home and not return to work until 24 hours after their fever has ended, without obtaining a doctor’s note to avoid overloading the health care system.  The new guidance includes lists of actions that should be taken now to prepare for the upcoming flu season, and utilities should review this guidance and visit http://www.flu.gov/ for more information about the flu and appropriate preparation measures.

Water Sector to Launch Second Round of Security Metrics Reporting

The Water Sector is poised to become the first critical infrastructure group to launch a second round of annual sector-specific security metrics reporting on Sept. 22.  Last year’s responses indicated that drinking water and wastewater utilities have made significant progress in many areas of security.  The 2009 metrics survey will be available to all utilities on the WaterISAC public website.  The measures consist of a short series of voluntary questions that are expected to take approximately 20-30 minutes to complete.  All responses will be completely anonymous — participants will not be asked to provide utility names or contact information.  A final report of aggregated sector-wide data will be made available in January 2010.   The measures, developed by the Water Sector Coordinating Council (WSCC) in partnership with EPA and DHS, are an important means to determining the extent to which the sector is progressing in the areas of security, preparedness, and resiliency.  NACWA helped to develop the measures and the Association encourages all members to participate in this important process.

Register Now for Water Sector Coordinating Council Cyber Security Training Workshops

The Water Sector Coordinating Council (WSCC) is hosting three one-day Cyber Security Training Workshops to improve the knowledge and skills of water sector utility employees who are responsible for control system security.  DHS’ Control Systems Security Program will provide the training during these workshops.  The workshops will be held September 28 in Los Angeles, October 15 in Chicago, October 26 in San Antonio, and November 3 in Holliston, Mass. (near Boston).  The workshops are free but registration is required.  Please register online as early as possible, since a minimum number of registrants will be required for each workshop to be held, and registration for the Los Angeles workshop ends on September 13.  The online registration is available on the WaterISAC website under News and Events at the top of the page.  WaterISAC membership is not required for attending the workshops.  An informational flyer about the workshops is available at www.nacwa.org/cyberworkshop09.

Water Quality

NACWA Participates in USGS Briefing on Key Mercury Report

NACWA was briefed August 21 by officials with the National Water Quality Assessment (NAWQA) and the Toxic Substances Hydrology Programs of the U.S. Geological Survey (USGS) on a report, Mercury in Fish, Bed Sediment, and Water from Streams Across the United States, 1998-2005, showing mercury contamination in every fish sampled from 291 streams across the country.  NACWA has stepped up its overall collaboration with USGS, and formalized this relationship by signing a Memorandum of Understanding with the agency at the 2009 Summer Conference in Milwaukee (Please refer to the July 17 Clean Water Current).  NACWA participated in the briefing as a member of the National Liaison Committee for the NAWQA Program.

At the briefing, USGS said that some of the highest levels of mercury in fish were found in the eastern and southeastern states, especially in forested watersheds with larger areas of wetlands, and that the primary source of contamination is air deposition from coal-fired power plants.  USGS said its research shows that transformation of total mercury loads into methylmercury — the form most easily taken up by aquatic organisms — depends on many different environmental factors.  The presence of wetlands, which increase the dissolved organic carbon in water, particularly led to higher levels of methylmercury transformation.  The briefing by USGS concluded with a discussion of the implications of this research on mercury control policies.  NACWA will continue to work with the USGS through its new partnership to help improve the understanding of the links between water and wastewater treatment and the impacts to the natural environment.

EPA to Host Stakeholder Meeting for Recreational Water Quality Criteria

EPA has scheduled a public meeting October 6-7 in Chicago for stakeholders to provide input to EPA on the development of new or revised recreational water quality criteria.  EPA plans to update meeting participants on the progress made in completing studies and framing the issues associated with the development of new or revised criteria, and then ask for stakeholder opinions on key issues and possible elements of new criteria.  In addition, a plan will be outlined to keep stakeholders informed as criteria development continues.  More information, including registration for the meeting, is available on EPA’s website.  EPA used input from NACWA to help develop the agenda for the stakeholder meeting, and NACWA will plan to attend the meeting and keep members informed of new developments.