» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to June 2, 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 with any questions or information on the Update topics.

Top Stories

EPA Announces Listening Sessions on Sanitary Sewer Overflow and Blending Policies

EPA announced in a June 1 Federal Register notice that it will be seeking public input on wet weather issues that affect sanitary sewer systems, including sanitary sewer overflows (SSOs) and blending.  The notice states that the Agency is considering “whether to propose to modify the National Pollutant Discharge Elimination System (NPDES) regulations as they apply to municipal sanitary sewer collection systems and sanitary sewer overflows” to address these issues.  EPA will begin holding public listening sessions beginning in June, and is providing a 60-day period for submission of written comments, which closes on August 2.  Although EPA stated in its press release that the Agency is considering these issues because it “is initiating a rulemaking to better protect the environment and public health” from SSOs and basement backups, the actual notice only announces the listening sessions and acceptance of written comments, not the official initiation of a rulemaking process.

The notice asks for input on specific questions related to SSOs and blending.  Input is solicited from the public on whether EPA should:

• Clarify and expand standard permit requirements to establish a comprehensive framework for monitoring, reporting, public notification, and recordkeeping for SSOs;
• Develop a standard permit condition that would require capacity, management, operation, and maintenance (CMOM) programs based on asset management principles;
• Require satellite collection systems to obtain NPDES permits and require these systems to meet standard permit conditions related to overflow reporting and CMOM requirements;
• Develop a standard permit condition to excuse certain SSOs caused by exceptional circumstances through enforcement discretion or establishment of an affirmative defense;
• Adopt the December 2005 draft peak flows “blending” policy or a revised policy, and/or to address peak flows as part of a holistic and integrated SSO rulemaking.
  

EPA is also asking for information regarding the costs and benefits of CMOM and asset management programs for sanitary sewers, as well as input on any other considerations related to the topics addressed in this notice.

NACWA is currently reviewing the notice and will issue a more detailed analysis in an Advocacy Alert later this week.  NACWA will need to consider how EPA’s notice and potential rulemaking affect the Association’s positions and current activities regarding SSOs and blending.  A workgroup of NACWA members has been working on an initial draft of a possible petition to EPA to develop a comprehensive SSO policy, and the group will now discuss how to potentially transform the draft petition into a white paper or position statement on the elements described in the notice and how an SSO policy should be formulated.  NACWA will need to submit comments on the notice by August 2.  The appropriate NACWA Committees will discuss these issues and the Association will also be soliciting input from all members.  Members are encouraged to provide any input to NACWA, attend the EPA listening sessions, and submit their own comments to EPA before the August 2 deadline.

NRDC Reaffirms Desire to Modify Secondary Treatment, EPA Considers Options

NACWA is preparing a letter to EPA’s Assistant Administrator for Water Pete Silva in response to an April 21, 2010 letter from the Natural Resources Defense Council (NRDC) and several other environmental groups to Silva that urged EPA to grant the November 2007 petition filed by the same groups seeking to modify the definition of secondary treatment to include removal for nutrients.  Citing the continued lack of progress at the state level toward developing numeric water quality criteria for nutrients, the environmental groups state that EPA has “both the authority and the duty to update its secondary treatment standards” and that “[e]conomically and technically feasible technologies to remove nutrients are now widely available.”  The letter includes direct responses to several points NACWA raised in its February 29, 2008 and September 24, 2009 letters to the Agency on the original petition.

The timing of the letter is critical as NACWA has learned that EPA staff are now briefing senior management on the Agency’s options for addressing the petition.  NACWA’s letter will respond unequivocally to characterizations of NACWA’s positions on the nutrient issues, underscoring that the clean water community has contributed tremendously, and will continue to contribute its fair share, to the solution.  The letter will highlight NACWA’s work to develop new approaches to nutrient control, including the Association’s upcoming Nutrient Summit to be scheduled later this summer.

Air Quality

EPA Proposes New Emissions Standards for Boilers

On April 30, EPA released proposed National Emission Standards for Hazardous Air Pollutants (NESHAP) for industrial, commercial, and institutional boilers at major and area sources.  These NESHAP may affect boilers used at publicly owned treatment works (POTWs), though NACWA anticipates that most POTWs will fall under the less onerous area source requirements.  EPA originally proposed NESHAP for boilers in 2003 and NACWA submitted comments on this proposal.  The final rule was promulgated in 2004, but was vacated in 2007 by the U.S. Court of Appeals for the District of Columbia.  This ruling required EPA to revise the NESHAP and its maximum achievable control technology (MACT) floors for boilers, and to revise its definition of solid waste.

In the prepublication version of the new proposed area source rule, different standards are proposed for new versus existing boilers, and for large versus small boilers.  Large boilers have a heat input capacity greater than or equal to 10 million British thermal units per hour (MMBtu/hr), while small boilers have a heat input capacity less than 10 MMBtu/hr.  The standards for large boilers vary depending on whether the boiler burns coal, biomass, or oil.  Boilers that burn natural gas are exempt from any new standards in this proposed rule, since they do not emit any of the urban hazardous air pollutants (HAPs) that EPA is limiting to meet Clean Air Act requirements.  For large boilers, specific emissions limits are proposed for mercury, particulate matter, and carbon monoxide, in addition to a requirement that the facility perform an energy assessment to identify cost-effective energy conservation measures.  For small boilers, the only requirement is to perform tune-ups every two years.

After the proposed rule is published in the Federal Register, NACWA will have 45 days to submit written comments.  NACWA will issue an Advocacy Alert with more details about the proposed NESHAP for area source boilers. Please contact Cynthia Finley This e-mail address is being protected from spambots. You need JavaScript enabled to view it if your facility has boilers that would be affected by this rule.

NACWA Comments on Proposed New Requirements for Hydrogen Sulfide Releases

NACWA submitted comments May 12, regarding EPA’s Intent to Consider Lifting the Administrative Stay of the Toxics Release Inventory (TRI) reporting requirements for hydrogen sulfide under the Emergency Planning & Community Right-to-Know Act (EPCRA), which could eventually lead to further controls on hydrogen sulfide emissions for public clean water agencies.  EPA had originally planned to add hydrogen sulfide to the TRI requirements in 1993, but then issued an Administrative Stay in 1994 in response to the human health effect basis of the listing.  The Agency has now completed its further evaluation of the human health and environmental effects of hydrogen sulfide, as presented in a February 26 Federal Register notice .  NACWA did not comment on the science behind EPA’s conclusions, but expressed concern that EPA would proceed with listing hydrogen sulfide as a Hazardous Air Pollutant (HAP) under section 112(b) of the Clean Air Act after listing it in the EPCRA.  As stated in the comments, “this could lead to maximum achievable control technology (MACT) requirements, which could require POTWs to cover portions of their treatment plants, address emissions from hundreds of miles of conveyance system piping, and potentially capture and treat emissions.”  NACWA asked EPA to carefully consider the consequences of any future regulations for hydrogen sulfide.  The Association and its Air Quality Workgroup will follow any new developments regarding hydrogen sulfide emissions.  Membership in the Air Quality Workgroup is open to all NACWA members, so please contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it to become a workgroup member.

Biosolids

Key Groups Meet to Discuss Sewage Sludge Incineration with EPA

NACWA participated May 27, in a meeting between EPA and representatives of the major state and local government associations including the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, the Environmental Council of States, and the National Governors Association to discuss the upcoming Clean Air Act proposal that will impose maximum achievable control technology (MACT) standards on sewage sludge incinerators (SSIs).  The Federalism Consultation meeting, required for any EPA rules that may impose costs over $25 million, provides the groups a formal opportunity to raise any concerns with EPA during the rulemaking process.  Given NACWA’s expertise and involvement in the issue, the Association was invited to participate.  During the meeting, staff from EPA’s Office of Air Quality Planning and Standards briefed the groups on its efforts to develop the SSI MACT standards and outlined the Agency’s estimates of cost to the clean water community and predicted environmental benefits of the new standards.  Much of EPA’s cost estimate focuses on whether clean water agencies currently incinerating will switch to landfilling in lieu of upgrading their incinerators.  Based on the presentation during the meeting, NACWA believes that EPA has underestimated the cost of lanfilling sewage sludge.  NACWA will comment on EPA’s range of cost impacts once the standards are proposed to ensure that the full cost of switching away from incineration is considered.  Several of the state and local government representatives at the meeting also expressed concern about the increased demand for landfill space and the ancillary impacts associated with transporting sewage sludge for landfilling, noting that EPA must factor in these impacts as well.

One positive development from the meeting was that it now appears that EPA will propose separate standards for the two major types of SSIs, which would significantly reduce the impact of the new rule.  NACWA has worked tirelessly over the past year to provide EPA with information demonstrating that this sub-categorization was necessary.  EPA had hoped to get the proposal to the Office of Management and Budget for review by the end of May, but that date has been pushed back to mid- June.  EPA is still hoping to have the standards proposed by the end of June or early July in order to provide sufficient time for public comment and EPA consideration of those comments before having to finalize the standards by December 16, 2010, the court-ordered deadline for signing the final rule.

Climate Change

EPA Rule Limits Greenhouse Gas Controls to Largest Sources, Reflects NACWA’s Comments

EPA announced a final rule on May 13 that will apply the Clean Air Act (CAA) stationary source permitting programs to only the largest emitters of greenhouse gases (GHGs) beginning on January 2, 2011, and should exempt POTWs until at least 2016.  The prevention of significant deterioration (PSD) and Title V programs of the (CAA) typically apply to sources that emit 100 or 250 tons per year (tpy) of criteria pollutants.  If these thresholds were used for GHGs, the permitting programs would be overwhelmed with the number of facilities requiring permits. EPA has therefore “tailored” the requirements of the PSD and Title V programs to limit the number of sources included.

EPA originally proposed a threshold of 25,000 tpy of carbon dioxide equivalent (CO₂e) for GHG emissions for the PSD and Title V programs.  However, after receiving comments – including comments from NACWA – that this threshold was much too low, EPA established higher thresholds in the final rule that will be progressively implemented.  From January 2 to June 30, 2011, PSD requirements for GHGs will apply only to sources currently subject to PSD permitting that increase their GHG emissions by 75,000 tpy CO₂e and significantly increase emissions of another non-GHG pollutant.  Sources currently subject to Title V for other pollutants will also need to address GHGs during this first step.  From July 1, 2011 to June 30, 2013, sources that emit at least 100,000 tpy CO₂e, will be subject to PSD and Title V requirements. EPA has not decided on the thresholds yet for a third step, from July 1, 2013 to April 30, 2016, but will issue a supplemental notice of proposed rulemaking in 2011 for these requirements.  EPA has guaranteed that no sources emitting less than 50,000 tpy CO₂e will be subject to CAA requirements for GHG before 2016.

NACWA Seeking Clarification from EPA about Impacts on POTWs
Although the thresholds stated in the final Tailoring Rule are much higher than in the proposed rule, POTWs cannot assume that they will be excluded from CAA requirements related to GHG emissions until at least 2016.  The Tailoring Rule rule does not specify how emissions should be calculated, and emissions from POTWs can be drastically different depending on the method used to calculate emissions.  For example, the Mandatory GHG Reporting Rule only accounts for emissions from combustion sources, not from the wastewater treatment process itself, while EPA’s annual Inventory of U.S. Greenhouse Gas Emissions and Sinks only accounts for the wastewater treatment process.  The Inventory excludes biogenic CO₂ emissions, but the final Tailoring Rule specifically states that biogenic emissions must be included in GHG emission calculations.  NACWA has asked EPA to clarify how emissions from POTWs should be calculated for purposes of CAA regulations, and once a response is received, the Association will provide more guidance to members about how this rule applies to POTWs.

Conferences and Meetings

Registration Open for NACWA’s Summer Conference

Registration is now open for the Association’s 2010 Summer Conference & 40th Anniversary Annual Meeting.  Join NACWA as it commemorates and celebrates the Association’s 40th anniversary, July 20 - 23, 2010 at the Fairmont San Francisco in San Francisco, Calif.  The conference, Sustainable Resource Management – Lessons from Clean Water’s Past & Present, will explore how the clean water community has evolved over the past four decades and how utilities are increasingly being looked to as resource managers rather than wastewater treatment agencies.  Front and center for many water managers is the complex relationship between energy production and water demands – the so-called ‘energy/water nexus’.  As national policy continues to encourage domestic energy production and more renewable energy sources such as biofuels, the amount of water required to meet the Nation’s energy needs will continue to grow.  More broadly, the conference will also examine how today’s sustainable approaches to water quality improvement provide a glimpse of the future of water management.  A complete narrative agenda is available at www.nacwa.org.

At the conference, recipients of NACWA’s National Environmental Achievement Agency Awards and Peak Performance Awards will be recognized, as will the inaugural class of honorees of the new NACWA Hall of Fame.  The Association’s year-long anniversary celebration with the theme, NACWA at 40  . . . A Watershed Moment, concludes in San Francisco with a special program and special events.  Registration discounts are available now for multiple registrants from the same utility.  Register today at www.nacwa.org/10summer and contact the Fairmont San Francisco at 415.772.5000 to guarantee the special  conference rate of $269 single/double.  Be sure to mention that you are a participant in NACWA’s Summer Conference.  The hotel reservation deadline is Tuesday, June 29.  We look forward to seeing you this summer in San Francisco!

Water Quality

NACWA Comments on Application of TMDLs to Ocean Acidification

NACWA submitted comments on May 21 in response to EPA’s call for public comments on potentially addressing the effects of ocean acidification under the Clean Water Act’s (CWA) 303(d) program.  EPA issued this call for comments after the Center for Biological Diversity sued the Agency for failing to require Washington State to list as impaired its coastal waters that fail to meet marine pH water quality criteria.  NACWA stated in its comments that the current scientific understanding of ocean acidification is limited and that “further research is required before regulatory decisions are made regarding pH changes in ocean waters and the potential impacts of ocean acidification.”  NACWA argued that if regulatory action is taken for ocean acidification, the CWA is not the appropriate tool.  The global nature of excess atmospheric carbon dioxide that may be causing ocean acidification demands a more integrated approach than what the more traditional and limited total maximum daily load (TMDL) program under the CWA can provide.  NACWA will follow developments on this issue and keep members informed of EPA actions regarding ocean acidification and the TMDL program.

NACWA Challenges EPA Position in Whole Effluent Toxicity Permit Appeal Case

NACWA filed a reply brief May 5 with the U.S. Environmental Appeals Board (EAB) challenging arguments made by EPA in a hotly contested appeal of a federalized NPDES permit containing whole effluent toxicity (WET) limits issued to member agency the San Jacinto River Authority (SCJRA) in Texas.  The NACWA brief, the second filed by the Association in the case, rebuts arguments made by EPA in the Agency’s most recent filing , arguing both that EPA’s brief should not be accepted for procedural reasons, and that EPA’s legal arguments are not sufficient to prevail.  As a procedural matter, NACWA points out that EPA did not receive permission from the EAB to file a response to NACWA’s earlier brief, and thus the EPA response must be stricken from the record.  As a substantive matter, NACWA’s reply brief disputes EPA’s legal arguments in the case and reasserts the Association’s position that EPA improperly and illegally federalized the SJRA permit.  NACWA’s brief requested the opportunity to participate in oral arguments before the EAB, which was granted.  Oral arguments will take place June 7.

At issue in the appeal are WET limits in a federalized permit given to SJRA by EPA which were not required in a previous permit written by the state.  NACWA filed its first brief in the case in March and raised two key challenges to EPA’s actions, arguing that the Agency impermissibly changed its position as to the validity of the Texas WET permitting procedures without any explanation or basis, and that EPA improperly sought to substitute its own view of Texas water quality standards in place of the state’s interpretation.  NACWA is supporting SJRA in appealing the permit and believes review by the EAB is necessary due to the far-reaching national implications the Agency’s actions could have on other CWA programs around the country.  Additional information on the case can be found in the Litigation Tracking section of the NACWA web site.  We will keep the membership updated on developments.

EPA Issues Methylmercury Implementation Guidance

EPA has issued final implementation guidance for its recommended fish tissue-based water quality criterion for mercury.  
EPA issued the criterion in 2001, and since that time has been working to develop and finalize the guidance on how to implement the criterion.  The guidance addresses a number of issues of significant concern to NACWA’s members, including EPA's recommendations for development of mercury-related permit requirements.  NACWA has worked through its Mercury Workgroup and with a broad array of industry stakeholders to ensure the final guidance was developed and reflective of public comment and ultimately worked to ensure the guidance was released by EPA in final form.  The final guidance addresses many of NACWA’s key concerns with implementation of the criterion.  Though the Obama Administration delayed release of the final guidance to conduct further review and some changes were made from earlier drafts, key provisions were left intact, namely 1) being able to use fish tissue directly to make regulatory/permitting decisions, without having to use the over-conservative bioaccumulation factors (BAFs) to derive water column numbers; and 2) retaining a focus on use of minimization plans in permits instead of very restrictive numeric limits.