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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: October 30, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2009 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to October 30, 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

Technology-Based Option Remains Viable as EPA Prepares Response to Nutrient Petition

A recent report by the U.S. Environmental Protection Agency (EPA) and state regulators, laying out options for addressing nutrient pollution, calls for the establishment of a cross-state, enforceable framework of responsibility and accountability for all point and nonpoint pollution sources and identifies numerous tools for addressing the problem.  The list of “most promising tools” includes updating secondary treatment to include removal for nutrients; nonpoint source regulation; federally required numeric nutrient criteria; a detergent phosphate ban; and green labeling.  The report, An Urgent Call to Action – Report of the State-EPA Nutrient Innovations Task Group , has garnered significant attention over the last few weeks.  EPA and state officials, including Jim Hanlon, director of EPA’s Office of Wastewater Management, Ephraim King, director of EPA’s Office of Science and Technology, and Ellen Gilinsky, president of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), provided the report to EPA Administrator Lisa Jackson in August.  While focused on establishing equitable controls for all sources of nutrient pollution, the report provides little detail on its recommended revision of secondary treatment and required federal numeric nutrient criteria — two issues of significant concern to NACWA.  The ad hoc task group was formed following an October 2008 meeting of EPA and state regulators.  While the report was not requested by the administrator, the joint message from EPA and the states will no doubt carry some weight with the Obama administration.

Whether this new report indicates a change in EPA’s thinking remains unclear as the agency continues to formulate its response to a petition by the Natural Resources Defense Council (NRDC) to redefine secondary treatment to include removal for nitrogen and phosphorus.  NACWA has met with EPA on several occasions and has developed legal and technical analyses to demonstrate to EPA that a one-size-fits-all approach, as contemplated by NRDC, simply cannot work.  Over the past year, EPA staff has seemed inclined to deny the petition, but felt vulnerable on several key legal arguments that had been made in the past on the same issue.  NACWA sent a letter  September 24 underscoring how EPA could legally deny the petition.  In an October 16 response , Pete Silva, EPA assistant administrator for water, said his office is “carefully reviewing the details” presented in the NACWA letter and expressed his appreciation for the data and information NACWA has provided over the past year.  He also noted that EPA “will further consult with NACWA … before we take action on the NRDC petition,” adding that the agency will “prepare a report and preliminary response to the NRDC petition later this fiscal year,” which ends on September 30, 2010.  NACWA continues to maintain an active dialogue with the agency on the issue and will be working to set up another meeting to discuss the EPA-state task group’s report and options for making continued progress on nutrient control in the coming weeks.

NACWA to Issue Strong Response to EPA Letter Affirming Status Quo with Blending

NACWA received a reply letter  September 28 from EPA assistant administrator for water Pete Silva regarding the Association’s May 1  and August 13  letters about blending of peak wet weather flows, confirming that EPA has in fact begun to implement the 2005 proposed peak flows policy.  As stated in the letter, the proposed policy “has not been withdrawn, and remains a viable path forward for utilities to meet their obligations under the bypass rule.”  The letter characterizes the Agency position as simply implementing the existing bypass regulation, promulgated in 1979.  “The bypass regulation provides that the Director of the NPDES [National Pollutant Discharge Elimination System] program may take enforcement action against a permittee for a bypass,” the letter explains, “unless the permittee demonstrates that certain criteria are met, including a showing that there were no feasible alternatives to the bypass.”  By pointing to the 1979 bypass regulation, coupled with the 2005 proposed policy, EPA is trying to defend its new position and avoid the fact that the 2005 proposed policy was never finalized.

EPA’s overall strategy on this issue, however, fails to acknowledge that the Agency has made a complete 180 degree turn in its handling of blending without a final policy statement from the Administration.  Clean water agencies across the country have been permitted for decades to employ blending during peak wet weather and such a major change in the implementation of the Clean Water Act (CWA) and its accompanying regulations requires a final policy statement from the Agency.  NACWA is planning a strongly worded response to the September 28 letter to underscore the Agency’s failure to complete the review process mandated by the Administrative Procedures Act for the 2005 proposed policy and to urge EPA to work to develop a sanitary sewer overflow (SSO) policy that would address blending and other SSO-related issues in a comprehensive manner.  NACWA is planning to discuss blending at its upcoming Board meeting in November, which will help inform this response.

Biosolids

Court Grants EPA More Time on Incineration Issue

NACWA learned late last month that the U.S. District Court for the District of Columbia has granted EPA more time to propose new standards for commercial and industrial solid waste incinerators (CISWIs) and boilers, which will also delay EPA’s actions related to sewage sludge incinerators (SSIs).  The Agency now has until April 15, 2010, to propose the standards and until December 16, 2010, to finalize Clean Air Act (CAA) regulations for CISWIs, boilers, and SSIs.  This also means that EPA’s parallel effort to develop a definition of non-hazardous solid waste to help determine under which section of the CAA these incinerators should be regulated will also be delayed.

NACWA has been very active on this issue since learning in July that EPA intended to include sewage sludge in its definition of solid waste.  With this ‘solid waste’ distinction, SSIs would have to be regulated under the more onerous provisions of the CAA, Section 129, rather than Section 112 where NACWA has long advocated SSIs belong.  NACWA recently outlined detailed arguments against the regulation of SSIs under Section 129 of the CAA 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.

After a long and complicated history, the regulatory status of SSIs was finally settled in January 2007 (72 Fed. Reg. 2620) when EPA announced that they were more appropriately regulated under Section 112 of the CAA.  However, a later ruling by the DC Circuit Court called into question the discretionary authority EPA had used when determining how to regulate CISWIs, boilers, and SSIs.  The court ruled that EPA could only draw distinctions between incinerators based on whether they were burning a solid waste or not.  Those burning a solid waste would have to be regulated under Section 129.  To meet its obligations under the DC Circuit ruling, EPA initiated a rulemaking to define solid waste under the nonhazardous waste provisions of RCRA.  The deadline extension will provide more time for NACWA’s advocacy efforts, and staff is currently working to set up meetings with the key EPA offices involved.

Climate Change

EPA Finalizes Greenhouse Gas Reporting Rule; Utilities Should Determine Applicability

On September 22, EPA released the Final Mandatory Reporting of Greenhouse Gases Rule, which will require facilities that emit over 25,000 metric tons of carbon dioxide equivalents (CO2e) each year to collect and report data on their greenhouse gas (GHG) emissions.  The final rule  was published in the Federal Register today, and the rule will go into effect on December 29, so utilities should act now to determine its applicability.  The rule excludes normal process emissions from municipal wastewater treatment facilities, but a utility’s sewage sludge incinerators, boilers, and other units are included in the rule’s stationary combustion source category.  If a utility burns a large enough quantity of fossil fuels in these units, it will need to determine whether it exceeds the reporting threshold.

NACWA provided comments  to EPA on the draft rule, and many of these comments were addressed in the final rule.  Most importantly, the emissions from combusting biosolids are now specifically excluded from the calculation of combustion emissions, and an opt-out provision was added for facilities that fall below the 25,000 metric tons CO2e threshold after reporting in previous years – changes requested by NACWA that will ehlp utilities avoid unnecessary costs.  EPA has kept its original timetable for implementation of the rule, with data collection beginning on January 1, 2010, and the first report due March 31, 2011.  With this tight schedule, NACWA members should determine by the end of this year if they meet the threshold for reporting and must begin data collection on January 1, 2010.  Regulatory Alert 09-06 provides more information on the changes made in the final rule that may affect wastewater utilities.

Conferences & Meetings

The Water Environment Research Foundation (WERF) invites its partners in the water quality community to join it online Tuesday, December 8, from 12:30-5:30 pm EDT for its 5th Annual Research Forum.  This unique virtual event will provide the latest in WERF research, and you don’t have to travel a single step.  Session topics range from climate change, alternative energy production, and trace organics, to the ongoing challenges in nutrient removal, asset management, and pathogen detection.  WERF is offering presentations on dual tracks – Operations & Technology and Water Quality – so you can move easily from one session to another.  And if you'd like to view a session again, you can visit a session archive for up to 30 days following the event.  Registration for NACWA members is $199.  To register, visit www.werf.org/registration or contact Gina Street at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 703/648-2470, ext. 7913.

Enforcement

EPA Releases Enforcement Plan, NACWA to Respond with White Paper

EPA Administrator Lisa Jackson testified on October 15 before the House Transportation & Infrastructure (T&I) Committee on the agency’s goals to improve enforcement under the CWA and announced the release of the CWA Enforcement Action Plan that incorporates a number of recommendations from NACWA.  NACWA provided its members with a detailed review of the enforcement plan in Legal Alert 09-04.  The hearing marked the 37th anniversary of the CWA and examined the effectiveness of national and state enforcement programs.  Representatives from state enforcement agencies also testified on their track record and called for a renewed partnership with EPA for achieving enforcement goals.  Other witnesses included local citizen activists who spoke to the issue of polluted waters caused by agricultural run-off.

EPA’s new enforcement plan is intended to improve the overall effectiveness and transparency of clean water enforcement actions and was developed over the past three months with input from a variety of stakeholders, including NACWA.  The Association submitted written comments  to EPA in August.  The plan specifically mentions NACWA and incorporates several suggestions in line with the Association’s comments, including a recognition by EPA that a new approach needs to be developed for carrying out enforcement actions that focuses not only on large permitted facilities, such as clean water utilities, but also looks at the impacts from other sources of water pollution such as concentrated animal feeding operations (CAFOs) and agriculture more broadly.  Additionally, the plan echoes NACWA’s call for more consistent clean water enforcement actions among the states, ensuring that each state is consistently and uniformly carrying out clean water enforcement actions and that there are not discrepancies in enforcement actions or policies from state to state or region to region.

However, the plan also states that enforcement against traditional point source dischargers will continue to be a priority for EPA, and NACWA is committed to protecting its members’ interests from unreasonable and unnecessary enforcement against clean water agencies.  As part of this effort, NACWA will be developing an enforcement white paper highlighting the significant investments clean water agencies have made over the past 40 years to improve water quality.  The paper will also discuss many of the challenges facing utilities under the current EPA enforcement regime, including issues such as funding and affordability, and will argue that any effort to improve overall water quality must shift the enforcement burden away from municipal dischargers and onto other sources of water pollution, such as nonpoint sources, that contribute more significantly to water quality impairment.  NACWA plans to distribute the white paper to members of Congress, regulators, and policymakers to ensure that any future clean water enforcement actions do not unfairly burden the municipal clean water community.

Facility and Collection Systems

NACWA Recommends Wastewater Facility Exclusion from Executive Order

NACWA sent a letter  on October 7 to the White House Council on Environmental Quality (CEQ) recommending that wastewater treatment facilities be specifically excluded from an executive order  that is being drafted on floodplain management.  The goals of the draft executive order include reducing the loss of life and property from floods, protecting and restoring the natural resources and functions of floodplains, and implementing cost-effective and environmentally sound floodplain management.  As currently drafted, the order would accomplish these goals by limiting federal grants and permits for facilities located in 100- and 500-year floodplains and evaluating  “practicable alternatives” that would be required before grants and permits could be issued.  While NACWA agrees with the goals of the draft order, the Association is concerned about its implications for wastewater utilities, which are usually located in low-lying areas and floodplains to reduce a utility’s need to pump wastewater.  “Locations in floodplains make sense in terms of both cost and environmental benefits, with gravity flow saving a significant amount of energy and associated carbon emissions,” NACWA’s letter stated.  “Therefore, the executive order should specifically exempt wastewater utilities in order to prevent utilities from performing unnecessary evaluations of locations outside floodplains before receiving federal funding or permits.”

The CEQ has informed NACWA that no work will be done on this executive order until the council completes its revisions to the Economic and Environmental Principles and Guidelines for Water and Land Related Resources Implementation Studies.  NACWA will continue to communicate with the CEQ about this draft order and will notify members of new developments as they occur.

Security and Emergency Preparedness

EPA Plans to Retain Primary Authority Over Water Sector Chemical Security

EPA and the Department of Homeland Security (DHS) reached an agreement that gives the Agency authority to implement Chemical Facility Anti-Terrorism Standards (CFATS) for publicly owned treatment works and community-based water systems.  EPA officially announced the policy during an October 1 hearing before the House Energy and Commerce Subcommittee on Energy and Environment.  The hearing was the first step toward legislative consideration of The Drinking Water System Security Act of 2009 (H.R. 3258), which would place security of drinking water utilities under EPA’s jurisdiction.

The agreement is the culmination of months of discussions between agency officials and is a key step in eliminating the potential for fragmented or duplicate authority in the water sector.  NACWA has advocated strongly that EPA should be the lead federal agency to oversee security matters at wastewater and drinking water facilities and has written several letters to Congress and to the Obama administration urging their support of this position.  NACWA’s most recent letter , sent September 10 to DHS Secretary Napolitano and EPA Administrator Jackson, urged the administration to support keeping regulatory authority for the water sector with EPA.  EPA’s response  to this letter, received by NACWA on October 19, outlines the responsibilities that EPA and DHS would have under the agreement.  EPA would use the existing DHS risk assessment tools, performance standards, and tiering methodology for chemical security.  The responsibility for reviewing and approving vulnerability assessments and site security plans would fall to EPA, and the Agency emphasized that “any decisions on Inherently Safer Technology methods for the water sector would need to engage the states given their primary enforcement responsibility for drinking water and wastewater regulations.”

NACWA continues to work with majority staff at the House Transportation and Infrastructure Committee to shape the Wastewater Treatment Works Security Act (H.R. 2883), which would place security of wastewater utilities under EPA’s jurisdiction.  The committee has indicated it could mark up the bill as early as the end of October.  NACWA will continue to track the progress of these security bills and provide updates to the membership.

EPA Launches Mutual Aid Webpage for Water Sector Utilities

EPA has launched a new webpage on mutual aid and assistance that provides descriptions of Water/Wastewater Agency Response Networks (WARNs) and the tools and publications available through EPA and the American Water Works Association (AWWA) to implement a WARN.  This webpage is part of EPA’s efforts to support a number of projects, in coordination with the water sector associations, to promote the use of mutual aid and assistance in response to any event that overwhelms an individual drinking water or wastewater system's resources.  This webpage contains basic information on WARNs, a sample mutual aid agreement, a tabletop exercise guide, and information on the Emergency Management Assistance Compact (EMAC), which provides a mechanism for mutual aid and assistance agreements between states.

Water Quality

NACWA Participates in BEACH Act Stakeholder Meeting

NACWA participated earlier this month in EPA’s latest stakeholder meeting as it works to develop new or revised recreational water quality criteria under the Beaches Environmental Assessment and Coastal Health Act (BEACH Act).  The meeting is part of a series of workshops EPA will hold over the next three years as part of a settlement agreement in Natural Resources Defense Council v. EPA, which settled a claim over EPA’s failure to carry out its obligations under the BEACH Act.  At the two-day meeting, EPA updated participants on research projects, including epidemiologic studies that must be completed in order to develop new or revised recreational water quality criteria.  NACWA’s Water Quality Committee, which has been tracking this issue closely, was provided with a detailed summary of the stakeholder meeting.  NACWA intervened in the BEACH Act case to protect its members’ interests and had a critical role in crafting the agreement to ensure clean water agencies had ample opportunity to provide input throughout the recreational water quality criteria development process.  For more information on the case, including a copy of the settlement, please visit NACWA’s Litigation Tracking page.  NACWA will continue to be an active participant in development of the new criteria and will keep the membership updated on future developments.