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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: May 4, 2010

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to May 4, 2010.  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 c 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

EPA Proposes to Define Incinerated Biosolids as Solid Waste

On April 30, EPA released a suite of proposed rulemakings on the regulation of commercial and industrial incinerators and boilers under the Clean Air Act (CAA), and senior U.S. Environmental Protection Agency (EPA) officials briefed stakeholders on the contents of the rules via conference call.  As NACWA has reported several times over the past year, one of the rules proposed by EPA articulates a new regulatory definition of non-hazardous solid waste that includes sewage sludge targeted for incineration.  NACWA has argued for several years that sewage sludge generated at publicly owned treatment works (POTWs) is not a solid waste and should be regulated under the Clean Water Act's Part 503 rules.  In its proposal, EPA states that the domestic sewage exclusion for solid and dissolved materials in domestic sewage does not extend to POTW-generated sludges and that when those sludges would be incinerated, they would be considered a solid waste.  NACWA has made significant efforts to avoid this outcome and will continue to build on these efforts to ensure that the proposed rule is changed in a manner that accounts for POTW concerns.  NACWA was successful through its meetings with EPA and the Office of Management and Budget (OMB) in getting language inserted into the proposal seeking comments on EPA's authority to craft an exclusion for sludges managed under Part 503 – and this remains NACWA's objective moving forward.  This language opens the door for a continuing dialogue on this option.  Another positive aspect of the proposal is the inclusion of language that EPA's proposal does not "cover other possible secondary material end uses," which is intended to minimize the rules impact on land application.  NACWA still has concerns about the impacts on land application and will further investigate those as it develops comments on the proposal. 

A troubling aspect of the proposal that NACWA will have to focus significant resources on is EPA's determination that sewage sludge generally has higher levels of some metal contaminants when compared to conventional fuels (EPA uses coal for comparison in the proposal).  This determination could have a major impact on any current and future use of biosolids as a fuel.  Should EPA make a final determination that biosolids targeted for incineration are solid wastes, that determination has the most immediate and significant impact on sewage sludge incinerators, which will face CAA maximum achievable control technology (MACT) standards.  NACWA will only have 45 days to comment on the proposal once it is published in the Federal Register.  NACWA's Board has approved funds to develop legal and technical comments and the Association will be reaching out to its members soon to encourage them to weigh in with EPA as well.

EPA Officials Confirm that SSO Proposal May Be on the Horizon

During  NACWA’s National Environmental Policy Forum in April, EPA Deputy Administrator Bob Perciasepe confirmed that the Agency is considering work on a more comprehensive sanitary sewer overflow (SSO) rule that would address several related issues, including blending.  Senior Office of Water officials had suggested during a March 29 meeting with NACWA that EPA’s preference was to move forward with initiating work toward a comprehensive SSO rule or policy, and the Deputy Administrator’s remarks confirmed that the decision to move forward would be made at the highest levels in EPA.  While this is an important development, the ongoing status of several key wet weather issues remains in doubt.

Although EPA’s intentions regarding the proposed 2005 peak flows policy have not officially been announced, it appears likely that the Agency will not pursue finalization of that proposal, choosing instead to address the issue via the more comprehensive SSO package.  What seems clear is that during the interim development phase of the comprehensive package, EPA intends to apply a very rigid interpretation of the existing bypass rule to all wet weather diversions (as has been the case in Region 7 and in a few other areas over the past several years), using its utility analysis document (which is still expected to be re-released for public comment) to guide the no feasible alternatives analysis process.  EPA continues to claim that this is not a new interpretation of its long-standing bypass rule. 

A recent letter to the Illinois Association of Wastewater Agencies (IAWA) confirms that EPA feels justified in its continued implementation of this new interpretation regardless of the fact that no policy has been finalized.  The March 26 letter from EPA Assistant Administrator for Water Peter Silva outlines the Agency’s current position on the permitting of peak wet weather flow diversions and parallel treatment units at clean water agencies.  Citing EPA's bypass regulations at 40 CFR 122.41(m), the letter states that the Agency "considers diversion around the secondary treatment units to excess flow treatment units to be a bypass where the effluent from the excess flow treatment unit does not meet the minimum requirements for secondary treatment."  Though EPA "commends those municipalities that have installed excess peak flow facilities", the letter indicates that such utilities would be required to complete a no feasible alternatives analysis to seek approval for discharges from those units as an anticipated bypass.  EPA states that although the 2005 peak flows policy has not been finalized, "it remains a viable path forward for utilities to meet their obligations under the bypass regulation."  In recent meetings with EPA, NACWA has underscored its view that the continued use of a non-final proposal to impose significant new requirements on utilities with major financial implications is not acceptable and would result in a legal challenge should a case become ripe for litigation. 

NACWA will keep members informed about new developments regarding blending and a comprehensive SSO policy.  

Air Quality

EPA Proposes New Requirements for Hydrogen Sulfide Releases; NACWA Requests Input for Comments

EPA is considering whether to lift an administrative stay on the inclusion of hydrogen sulfide in the Section 313 chemical release reporting requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA).  Hydrogen sulfide was added to Section 313 of the EPCRA on December 1, 1993, but EPA issued the administrative stay on August 22, 1994 to evaluate issues raised after promulgation of the rule regarding the human health effect basis for the listing.  EPA has now completed its further evaluation of the human health effects of hydrogen sulfide and believes that the stay should be lifted.  The review of human health and environmental effects of hydrogen sulfide that were collected by EPA are summarized in a February 26 Federal Register notice.  Based on this review, EPA believes there is sufficient evidence of the chronic health effects in humans and the toxicity to aquatic organisms to lift the administrative stay. 

If EPA includes hydrogen sulfide in Section 313 of the EPCRA, it is likely that hydrogen sulfide will eventually be listed as a Hazardous Air Pollutant (HAP) under Section 112(b) of the Clean Air Act, which may result in additional emission control requirements for wastewater utilities.  NACWA plans to provide comments to EPA by the May 12 deadline about the proposed lifting of the administrative stay to inform the Agency about the possible consequences to wastewater utilities.  NACWA members are asked to send any input about these consequences to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by May 7.   

Climate Change

NACWA Urges EPA to Revise Greenhouse Gas Emissions Estimates for Wastewater

NACWA submitted comments to the EPA on April 14 regarding the Agency’s draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2008.  The annual inventory presents estimates of greenhouse gas (GHG) emissions for various sectors, including wastewater treatment.  The wastewater treatment category in the Inventory includes centralized municipal wastewater treatment, septic systems, and industrial wastewater treatment systems, and the category consistently ranks in the top ten sectors for emissions of methane and nitrous oxide.  With support from NACWA’s Targeted Action Fund (TAF) and Critical Issues Action Initiative (CIAI), the Association has commented on the Inventory for the past three years.  As a result, EPA has made several changes in the calculation methods used in the Inventory which have made them more realistic and also reduced the estimated nitrous oxide emissions from centralized municipal wastewater treatment.  NACWA still believes that further improvements could be made to the Inventory calculation methods so that the estimates more accurately reflect actual emissions from publicly owned treatment works (POTWs).

The Inventory has only been used for information purposes in the past, but it was recently cited in EPA’s proposed Prevention of Significant Deterioration and Title V GHG Tailoring Rule ("Tailoring Rule") as the methodology that a facility must use to calculate whether it exceeds the threshold for regulation of GHG emissions under the Clean Air Act.  Given the importance of this Tailoring Rule, which is expected to be finalized soon, and other potential future uses of the Inventory in crafting EPA regulations, NACWA’s comments urged EPA to revise its estimates for nitrous oxide emissions from POTWs.

In comments on previous versions of the Inventory, NACWA has presented the results of a literature review on nitrogen loading values to POTWs, and NACWA also verified these literature values with a survey of 48 POTWs throughout the United States.  The nitrogen loading values determine the nitrous oxide emissions from POTWs in the calculation methods used by EPA in the Inventory.  EPA noted in the draft Inventory that "the dataset previously provided by NACWA was reviewed to determine if it was representative of the larger population of centralized treatment plants for potential inclusion into the inventory."  NACWA’s comments disagreed with EPA’s conclusion that the dataset was too limited, stating that the Association "believes that the literature – including EPA’s own publications – provides sufficient information to allow changes to be made to the Inventory emissions calculations methods."  NACWA also pointed out that the literature review and data should provide EPA with a strong argument to conduct its own study to develop more accurate nitrogen loading rates. 

NACWA also asked that EPA break down the reported methane emissions values for domestic wastewater into emissions from septic systems and emissions from centralized treatment.  Septic systems are responsible for approximately 85 percent of the methane emissions from domestic wastewater, but this is not shown in the Inventory.

EPA released the final Inventory for 2008 on April 15, the day after public comments were due.  Any changes resulting from NACWA’s comments will therefore be included in next year’s Inventory.  The Association will ask EPA for a direct response to its comments and determine what additional work may be needed to ensure that EPA revises the Inventory’s GHG emissions estimation methods.

Conferences and Meetings

Register Now for NACWA’s Pretreatment and Pollution Prevention Workshop

NACWA’s 2010 Pretreatment and Pollution Prevention Workshop, May 19-21 in Phoenix, Arizona, will focus on topics that promise to be important for pretreatment programs in the future, as well as issues that are currently affecting these programs.  With a theme of P3: The Next Generation – Its Continuing Mission to Clean the Nation’s Water, the program will include updates from EPA on effluent guidelines, pretreatment performance measures, and other current and upcoming regulatory developments, including the possibility of regulations for perfluorochemicals (PFCs), which are currently unregulated but have resulted in contaminated biosolids in some locations.  Also on the program are panel discussions of issues such as "flushable" wipes and other products that may not be so flushable, how mercury discharges to the sewer system should be controlled, and how pretreatment programs are being affected by new stormwater regulations.  One featured speaker, Scott Reynolds, will tell the story of Sable, the Sewage-Sniffing Dog, and his work to sniff out illegal sewage discharges with remarkable cost-effectiveness and accuracy.  Carol Staniec, Pretreatment Enforcement Program Manager for EPA Region 5, is another featured speaker, with a presentation on "Pretreatment Program Audits: Common Problems and How to Avoid Them," which promises to provide valuable information to pretreatment professionals.  Networking opportunities will also be provided through two roundtable discussion sessions and evening receptions.  A complete agenda, online registration, and travel information for the Workshop are available on NACWA’s website. 

Water/Energy Sustainability Symposium Call for Abstracts

The 2010 Water/Energy Sustainability Symposium, Water and Energy in Changing Climates, is being held September 26-29 at the Sheraton Station Square in Pittsburgh.  The Symposium is co-sponsored by the Ground Water Protection Council, the Department of Energy, and EPA, with NACWA and other water and energy sector associations as partners.  NACWA expects that energy issues will become increasingly important to wastewater utilities in the next few years as energy prices rise, reduction of carbon footprints become more important, and the value of renewable energy sources from wastewater treatment become more widely recognized and economically viable.  The Symposium will provide an opportunity for representatives from government, energy and water industries, academia, and water organizations to collaboratively chart a course toward sustainability for both water and energy resources.  The goal of the Symposium is to develop recommendations for policy makers on the steps needed to integrate water and energy planning and sustainability, and including the municipal perspective on policy recommendations is vital.  NACWA will be attending the Symposium and encourages members with an interest in water and energy policy to attend and potentially give a presentation on their utility’s efforts in this area.  Abstracts for presentations at the Symposium are being accepted until May 14, 2010, and presenters receive a reduced registration rate of $195.  See www.waterenergy2010.com for abstract submittal instructions and more information about the Symposium. 

EPA Invites Utility Participation in Water Laboratory Alliance Security Summit

EPA is sponsoring the second Water Laboratory Alliance (WLA) Security Summit, June 16-17, in San Francisco.  The WLA provides the water sector with an integrated nationwide network of laboratories that have the capabilities and capacity to analyze water samples in the event of chemical, biological, or radiochemical contamination, and is an important component of emergency preparedness of drinking water and wastewater utilities.  The Summit will actively engage a variety of technical and leadership staff from the water sector, laboratory, and emergency response communities to learn about WLA program elements, practice the WLA Response Plan for incident response, and provide hands-on experience with EPA security-related tools and resources.  Utilities attending the summit will be able to enhance their preparedness plans for emergencies related to intentional or accidental contamination.  Registration for the Summit is free, and a group rate of $166/night is available at the San Francisco Grand Hyatt.  Registration and more information about the Summit are available at https://www.thetestportal.com/wlasummit. 

EPA

NACWA Participates in Key EPA Meetings Focused on Municipal, Sustainability Issues

NACWA provided input into two significant meetings at EPA in April.  The first was the kick-off meeting between municipal water sector associations and Assistant Administrator for Water Peter Silva and other EPA officials.  These meetings are scheduled to take place every two months and were put together in part due to NACWA's urging that municipal water leaders be given the same opportunity for regular meetings with Silva as industry and the NGO community.  The meeting focused on drinking water, wastewater, and stormwater issues and EPA again repeated that an upcoming announcement regarding a sanitary sewer overflow (SSO) policy would be made soon (see related stories).

NACWA also participated in EPA's April 15 Coming Together for Clean Water meeting, which provided a forum for top leaders in the water sector to discuss three themes: sustainability, watershed initiatives, and nutrient issues.  NACWA's President Kevin Shafer, Executive Director of the Milwaukee Metropolitan Sewerage District, and NACWA Executive Director Ken Kirk participated in the discussion session.  EPA will be issuing a report based on the discussion and NACWA will let members know how to provide ongoing input on this effort via future publications.

Pretreatment and Pollution Prevention

NACWA Meets with Surface Finishing Industry to Discuss Perfluorinated Compounds

NACWA presented the clean water community's perspective on perfluorinated compounds (PFCs) on April 28 during the National Association of Surface Finishers’ (NASF) Washington Forum.  NACWA has tracked the issue of PFCs in wastewater for several years, after the contamination of several private drinking water wells occurred adjacent to a biosolids land application site in Alabama.  At the time, the issue of PFCs, a substance used in all types of applications from cookware to stain-resistant carpet, was thought to be isolated to those communities where PFCs were manufactured.  However, two studies in EPA Region 5 looking at discharges from metal finishing operations and POTW influent and effluent concentrations, have shined light on the issue of PFC-based fume suppressants used in metal finishing operations and the potential for PFC discharge to the sewer.  Predominantly used in hexavalent chromium plating operations, PFC-based fume suppressants are used to meet EPA Clean Air Act requirements.  NASF and others in the industry are looking to switch to alternative fume suppressants and invited NACWA to address its DC meeting to share the POTW perspective.  NASF representatives will be presenting at NACWA's upcoming National Pretreatment and Pollution Prevention Workshop in Phoenix, Arizona, May 19-21 (see related story), and the two organizations have committed to working together on this issue.

Water Quality

NACWA Raises Concerns with EPA Nutrient Proposal for Florida, Begins Work on Summit

In its April 28 comments on EPA’s proposed numeric nutrient criteria for Florida, NACWA expressed concern about EPA's continued reliance on a rigid water quality framework for nutrients based on numeric values for total nitrogen and total phosphorus.  NACWA highlighted the need to explore alternative, more sustainable approaches that accomplish significant nutrient reduction while also providing greater flexibility, and announced its plans to convene a summit of clean water community representatives this summer to outline reasonable solutions to the nutrient issue.  NACWA's comments noted that reasonable and meaningful water quality goals for nutrients must be technically and scientifically defensible and technically achievable; based on a demonstrated cause and effect relationship between stressor and response variables; and should not be implemented until a biological impact has first been demonstrated.  In addition, NACWA noted that an adaptive watershed approach should be used to coordinated control efforts to ensure any goals result in a net environmental benefit.

NACWA's comments raised significant concerns with EPA's proposed numeric nutrient criteria for Florida, noting that the criteria values, based on EPA's flawed reference condition approach, are not needed to protect water quality in Florida.  In fact, as NACWA and other stakeholders have outlined, EPA cannot demonstrate whether its proposed criteria will even be able to protect the designated uses of Florida's waters.  EPA admits in its proposal that it was not able to demonstrate a causal relationship between the nitrogen and phosphorus concentrations it has established and instream biological impacts.  EPA defaulted to its reference condition approach to establish the criteria, which, based on initial assessment by Florida's Department of Environmental Protection, would deem even some of Florida's most pristine waters as impaired.  EPA also vastly underestimated the cost impacts of its proposed criteria on Florida's clean water agencies and other dischargers.  

While not acknowledging that the criteria values are flawed, EPA's proposal and cost estimate recognize that the numbers are extremely low and likely unachievable by many dischargers in the state.  In an effort to alleviate implementation challenges, EPA's proposal did include some positive elements including the use of annual averaging and a new concept, the restoration standard, that shows promise for improving implementation of nutrient criteria in the future.  As proposed, however, the restoration standard concept presents a significant burden in terms of the analysis that would be required to set the interim goals under the standard and leaves many questions unanswered in terms of the consequences for failing to meet those interim goals. 

NACWA Begins Planning for Nutrient Summit

In related news, NACWA has begun planning for its Nutrient Summit to take place this summer and will provide additional details to the membership soon.  At its recent National Environmental Policy Forum, NACWA’s Board of Directors approved funding to convene the Nutrient Summit of clean water industry stakeholders.  This Summit would outline the clean water community's vision for addressing nutrients and seek to provide EPA with proactive recommendations on a viable approach to nutrient control.  NACWA plans to use the report from the Summit to engage EPA and the states in a meaningful dialogue on nutrient control.  In the meantime, NACWA will continue its ongoing discussions with EPA and the states on possible solutions, including via its comment efforts.

NACWA Comments on EPA's Revised, More Stringent Ammonia Criteria

NACWA submitted comments on April 1 regarding EPA's December 30, 2009, proposed revisions to its water quality criteria for ammonia.  Since EPA first announced in 2004 that it might revise its existing ammonia criteria, NACWA has raised concerns about the freshwater mussel toxicity data EPA planned to use to revise the criteria values.  EPA has provided NACWA with several opportunities to interact with key staff over the past several years to gain a better understanding of the new scientific information the Agency was considering.  Last summer, in a meeting with NACWA, EPA indicated that it had collected additional data confirming the sensitivity of freshwater mussels to ammonia and that it would rely less on the data that had concerned NACWA.  Though the December 2009 proposed revisions confirmed that EPA has addressed many of NACWA's previous comments, several issues remain.

NACWA's comments supported EPA's approach of using bifurcated criteria, with different levels of protection for those waters where mussels were present, but highlighted a list of issues with the data being used, including the use of invasive species toxicity information, and several implementation questions that remain unanswered.  The top implementation issue for NACWA is the manner in which the ‘mussels present' determination is made.  Once the ‘mussels present' determination is made, then the more stringent criteria must be met.  Clean water agencies will have difficulty meeting the new, lower numbers and their efforts to comply will result in other operational impacts, making the details of this threshold determination and subsequent implementation of vital importance.  Unfortunately, few details are provided in the criteria document.  EPA only notes that it appears that many states in the continental U.S. have freshwater mussel fauna in at least some of their waters.  Given the complexity of the tiered criteria and the potential impacts on clean water agencies, NACWA's comments stressed the need for detailed implementation guidance.  EPA representatives have indicated that implementation guidance will be released with the final criteria, but NACWA believes that any implementation guidance must be released for public review and comment before the final criteria are released.