The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to September 17, 2008.  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 with any questions or information on the Update topics.

Top Stories

Senate Briefing Canceled After Controversial Letter by Anti-Biosolids Advocates Surfaces

A Sept. 11 oversight briefing on biosolids in the Senate Environment and Public Works (EPW) Committee was canceled abruptly after the committee learned that land application opponents were using the event to force a quick settlement in a lawsuit.  The committee announced the cancellation at 10 p.m. on Sept. 10 after learning of a letter sent Sept. 3 by lawyers representing retired EPA scientist David Lewis and a Georgia farmer, Andy McElmurray, two staunch biosolids opponents, scheduled to testify before the committee.  The letter used the scheduled briefing as a tool to coerce a rapid settlement in a lawsuit they had filed against the University of Georgia (UGA) Research Foundation and individual UGA officials over the biosolids issue.  The letter was leaked to the press, and the briefing was then canceled.  A full committee hearing had been scheduled for the 11th but committee majority leaders opted instead for the less formal briefing format.  While NACWA was successful in its efforts to secure a witness for both the hearing and the briefing, NACWA views the switch from a hearing to a briefing and the subsequent cancellation of the briefing as significant victories and has long maintained that such a hearing/briefing was unnecessary given the consistent record of safety regarding land application practices.

NACWA Meets with NRDC, American Rivers to Discuss Priorities, Future Opportunities

NACWA met with the Natural Resources Defense Council (NRDC) and American Rivers August 20, to discuss topics of mutual interest, including several legislative efforts and issues surrounding the control of nutrient discharges.  Promoting the use of green infrastructure and addressing climate change are two key areas that offer the best opportunity for cooperation and collaboration among the three organizations.  NACWA has partnered with NRDC and American Rivers over the past year to promote green infrastructure initiatives, and the three have committed to work together to develop legislation that would establish a grant program for communities interested in implementing green infrastructure as part of their combined sewer overflow (CSO) control programs.  On the climate change front, the discussion focused on the need for NACWA, NRDC, and American Rivers to work together to ensure that clean water concerns are part of any legislation.  NACWA would like their support in advocating for federal funding, especially to help municipal utilities with adaptation and mitigation measures.

NRDC indicated that it has not changed its position on nutrient control as articulated in its petition filed with EPA last November, which calls for national nutrient limits as part of the secondary treatment requirements.  NACWA opposes such an approach as outlined in the comments filed by the Association in response to the petition.  NRDC believes there is a clear mandate in the Clean Water Act for technology-based controls on nutrients via the secondary treatment provisions.  NRDC and American Rivers acknowledged that nonpoints are the major sources of excess nutrients, but that due to powerful agricultural interests, success on the nonpoint source front was not likely and that they would instead focus their efforts on those areas where they felt they could be successful.  NRDC and American Rivers acknowledged that there are drawbacks to a purely technology-based approach, namely energy consumption, and said they were interested in exploring lower-energy technologies for controlling nutrients at point sources.  NACWA continues to work with EPA and the states to aid EPA in developing a response to the NRDC petition.

NACWA Scores Litigation Victory with BEACH Act Settlement

NACWA won a significant legal battle regarding recreational water quality criteria under the Beaches Environmental Assessment and Coastal Health (BEACH) Act when a settlement agreement was filed in federal court August 8.  The settlement in Natural Resources Defense Council (NRDC) v.  U.S. Environmental Protection Agency (EPA) marks a key turning point in the Association’s advocacy efforts regarding the development of new recreational water quality criteria and will also help the Association’s advocacy efforts on these issues in the legislative arena.

The agreement among NACWA, NRDC, Los Angeles County, and EPA directs the Agency to conduct the necessary scientific studies and develop new recreational water quality criteria by 2012.  EPA will also be required to solicit stakeholder input throughout the criteria development process.  This settlement ensures that EPA will have sufficient time to develop the new criteria, and that key stakeholders, including NACWA and its members, will have several opportunities to participate in the criteria development process.  This aspect of the agreement fulfills the primary goals for the Association’s participation as an intervener in the litigation.

EPA has committed to carrying out a number of specific studies, including efforts to determine appropriate indicators for new water quality criteria that will be protective of public health and that are scientifically based.  Under the terms of the agreement, EPA will conduct studies in a variety of different geographic regions across the country as well as at beaches affected by different forms of water contamination.  Additionally, the agreement commits EPA to validate and publish a rapid test method for the new or revised criteria by October 2012.  The rapid test method will be based on indicators deemed appropriate by the Agency during the research period and will be validated through an inter-laboratory study.

The settlement’s provisions on rapid test methods bolster NACWA’s advocacy efforts regarding the House and Senate versions of the Beach Protection Act (S. 2844, H.R. 2537).  NACWA has already contacted key congressional staff to make them aware of these provisions.  Senator Tom Coburn (R-OK) continues to maintain his hold on this legislation, halting the ability of the Senate to move it to the Senate floor.

Again, this settlement represents a significant victory for NACWA and its members by ensuring that the public clean water agency perspective will be heard throughout the development of new recreational water quality criteria.  The settlement maximizes NACWA’s ability to voice its members’ concerns and protect them from the publication of criteria based on potentially flawed science.  NACWA will continue to monitor the progress of the settlement agreement and will also continue its ongoing discussions with Congress on the Beach Protection Act legislation to ensure that it reflects the consensus provisions of the settlement.

A more detailed analysis of the settlement is available in Legal Alert 08-05; a copy of NACWA’s press release is also available.  A copy of the agreement, along with other documents related to the case, are available on the Litigation Tracking page of NACWA’s Member Pipeline.

Air Quality and Climate Change

EPA Collecting Data for Biosolids Incinerators Under CAA Sections 112 and 129

NACWA recently learned that at least two biosolids incinerators have received a formal request from EPA for emissions information in preparation for regulatory development under the Clean Air Act (CAA).  The two incinerators are among a list of over 3,000 boilers and incinerators from all industry sectors nationwide that received the survey.  As NACWA reported earlier this year, EPA is reconsidering the regulation of biosolids or sewage sludge incinerators (SSIs) under Section 129 of the Clean Air Act (CAA), in lieu of Section 112.  EPA has made no final decision on how to regulate SSIs, but is proceeding with the data collection for regulation under either Section 112 or 129, so that it does not fall behind in its schedule for developing these regulations.  NACWA has advocated since the mid-1990s that SSIs should be regulated under CAA Section 112, which governs toxic emissions, and filed comments in August 2006 detailing why regulation under Section 129, which covers solid waste incinerators, would not be appropriate.   Under the more stringent Section 129 requirements, SSIs would be required to meet best available control technology limits and existing SSIs would be subject to the average emissions levels achieved by the best performing 12 percent of units in the category.

A decision issued June 8, 2007 by the D.C. Circuit Court of Appeals in Natural Resources Defense Council v. EPA vacated and remanded both the Commercial and Industrial Solid Waste Incinerator Definition Rule and the Boilers Rule.  At issue were EPA’s past determinations regarding which incineration units should be handled under Section 112 versus 129.  While the Other Solid Waste Incinerator (OSWI) rule was not specifically addressed in the case, EPA’s Office of General Counsel believes the decision requires the Agency to also reconsider its December 16, 2005 final OSWI rule in which it determined that SSIs are not OSWIs and should be covered under Section 112.  Reconsideration of the OSWI rule will trigger a new rulemaking process during which EPA must again determine whether SSIs are OSWIs subject to Section 129, or whether SSIs are not incinerating a solid waste, a position NACWA has long advocated, and therefore are more appropriately covered by Section 112.  Before that can happen, EPA must develop a new definition of what constitutes a solid waste under the Solid Waste Disposal Act.  According to EPA Air Office officials, a decision on a new definition of solid waste is not expected during the current administration, but the data collection effort will continue in an effort to prepare for the eventual rulemaking process.  NACWA will be working to ensure EPA and its Office of General Counsel have sufficient justification to again conclude that SSIs are subject to Section 112, not 129, of the CAA.

Meetings and Conferences

NACWA at WEFTEC 2008 in Chicago

NACWA will hold its annual Hot Topics Breakfast on Tuesday, October 21, during WEFTEC 2008 in Chicago.  NACWA members attending WEFTEC are encouraged to attend and listen to key EPA staff provide updates on critical water quality-related topics.  Jim Hanlon, Director of EPA’s Office of Wastewater Management and Ephraim King, Director of EPA’s Office of Science and Technology have been invited to attend and will be joined by key members of their staff to discuss issues including nutrient controls, effluent guidelines, and whole effluent toxicity, just to name a few.  The breakfast is an informal session and will provide ample opportunity to ask questions of our EPA guests.

Please mark your calendars for Tuesday, October 21, 2008 from 8 am - 10 am (breakfast will be available at 7:30 am) at the Sheraton Chicago Hotel & Towers (the WEFTEC headquarters hotel).  We hope to see you there!

Pretreatment & Pollution Prevention

NACWA Meets with EPA, ADA to Discuss Possible Collaboration, Reviews Congressional Report on Dental Office Discharges

NACWA and representatives from the American Dental Association (ADA) again met with EPA’s effluent guidelines office on September 3 to continue discussing the possibility of using the ADA’s best management practices for mercury amalgam waste as the basis for a national voluntary program to encourage broader use of the practices by dental offices.  The ADA added the use of amalgam separators to its best practices document last fall and has developed several resources to help dentists understand why the devices are important to protecting water quality.  A national set of best practices could dramatically increase the use of separators and decrease discharges of mercury to POTWs and bolster the many local programs already developed by NACWA members. During the meeting, NACWA outlined the concerns raised by its members following an initial discussion among the three groups back in April.  Chief among NACWA’s concerns is ensuring that clean water agencies will retain the authority to regulate dentists in any manner deemed necessary to meet applicable Clean Water Act requirements.  EPA raised concerns about waiving any type of enforcement liability for dental clinics that follow the practices.  The three organizations are now working to draft mutually agreeable language for a potential memorandum of understanding to encourage use of the ADA's Best Management Practices for Amalgam Waste.  NACWA’s Mercury Workgroup will review the draft memorandum and advise NACWA on next steps.

NACWA is now reviewing a report from the Domestic Policy Subcommittee of the House Committee on Oversight and Government Reform summarizing the testimony given during a July 8 Subcommittee hearing on the best ways to control mercury discharges from dental clinics.   The report details a congressional survey of state and local efforts to reduce releases of dental mercury, concluding that mandatory programs, or voluntary programs “underpinned with the threat of a mandatory provision,” are the most effective model for reducing mercury releases.  The report, Reducing Dental Mercury Emissions: Installing Amalgam Separators and Achieving Compliance, is available online.

EPA Releases ELG Plan and Related Documents

On September 15, EPA published its final 2008 Effluent Guidelines Program Plan.  According to the Plan, EPA will continue its detailed studies of the steam electric power generating industry, the health services industry, and the coalbed methane extraction industry (part of the oil and gas extraction industry).  The health services industry study includes a detailed survey to determine how health care facilities dispose of unused pharmaceuticals.  NACWA is now reviewing the draft survey and will provide any comments to EPA in the coming weeks.  In a document released together with the ELG plan, EPA announced that it believes categorical pretreatment standards for dental mercury discharges under the Clean Water Act are not appropriate at this time.  Dental clinics had been included as a part of the health services industry category.  Citing the number of successful voluntary programs demonstrating that there are opportunities for pollution prevention and adoption of best management practices without federal regulation, EPA outlined its decision in the report, Health Services Detailed Study: Dental Amalgam.

In a related development, EPA has released a new memorandum clarifying the applicability of existing effluent guidelines and categorical pretreatment standards to biodiesel manufacturing dated August 11, 2008.

NPDES Permitting

EPA Finalizes Permit Fee Rule Despite Directive from Congress Barring its Implementation

On September 10, EPA published its final rule establishing incentives for states to increase fees for National Pollutant Discharge Elimination System (NPDES) permits, despite strong opposition by NACWA, state water officials, and others and a clear mandate from Congress barring such an action.  Additional information and a fact sheet are available on EPA's website.  NACWA is now discussing its options for a possible challenge of the final rule.

These new permit fees will place a significant financial burden on clean water agencies, particularly small to midsize utilities.  Under the rule, some clean water agencies may have to pay up to an additional $400,000 a year in new permit fees and may be forced to take money away from other important water quality programs.  NACWA along with numerous other organizations has opposed the rule since its inception and believes EPA has now over stepped its authority in moving forward with the rule and ignoring the congressional directive.  Congress inserted report language into the Fiscal Year (FY) 2008 omnibus budget, which included EPA’s funding, that barred the agency from moving forward with its permit fee proposal.  The rule is intended to drive states to fully fund their NPDES Permit programs through permit fees or run the risk of having their Clean Water Act (CWA) section 106 grant funds cut.  Specifically, the rule, which was first proposed by EPA in December 2006, would provide a certain amount of “incentive” funds from the Section 106 program to states that fund at least 75 percent of their NPDES permit program costs through user fees, with the highest incentives going to those states that fund 100 percent of their programs through fees.

When the rule was first proposed, NACWA submitted comments outlining its concerns about the plan to tie critical Clean Water Act funds to the proposed permit fees.  The rule will only apply if total funding allotted to the states under the Section 106 program is increased above the FY 2008 level of $222 million.  In that case, a percentage of the increased funds may be allotted to states with eligible permit fee programs.  The incentive will never exceed $5.1 million.  The rule is in effect for the FY 2009 grant cycle and beyond.

Water Quality

NACWA Meets with Industry, EPA on Emerging Contaminants

During its August 14 conference call, NACWA’s Emerging Contaminants Workgroup met with representatives from an industry coalition recently formed to work on similar issues.  During the call, several areas of potential future collaboration were identified and the industry representatives committed to providing NACWA’s members with better access to industry research and reports on emerging contaminant issues.  EPA’s test methods for detecting pharmaceuticals and personal care products were identified as an area where the two groups could probably collaborate.  A small group of NACWA Workgroup members is now working to develop comments on EPA’s new methods and will reach out to the industry groups once a draft is ready.

NACWA Meets with EPA to Discuss Triclosan Risk Assessment

NACWA and other environmental organizations met with EPA Sept. 4 to discuss the agency’s risk assessments for triclosan, an antimicrobial agent used in soaps and many other household products.   The meeting was part of the process to gather information for what is known as a Re-registration Eligibility Decision (RED) document that evaluates the human health and ecological impacts of pesticides, including anti-microbials, such as triclosan.  These compounds are regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the REDs are done to ensure they meet scientific and regulatory standards.  The clean water community has raised concerns about triclosan’s impacts on water quality, aquatic organisms, and biosolids.  Triclosan has the potential to pass through the waste treatment process and accumulate in the aquatic environment and in biosolids due to its widespread use in many household products.

During the meeting, NACWA urged EPA to coordinate its efforts with the Food and Drug Administration (FDA) as many products that contain triclosan, such as soaps and personal care products, fall under its regulatory authority and in some cases products may be covered by the regulatory framework of both agencies.  EPA is hoping to complete its risk assessment for triclosan and sign a decision document this month.  NACWA will continue to work with its partners to provide comment as the risk assessment progresses and will report to the membership on any developments.