The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to August 7, 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

Ohio Senators Introduce Financial Capability Legislation

Sens. George Voinovich (R-Ohio) and Sherrod Brown (D-Ohio) introduced bipartisan affordability/financial capability legislation (S. 3443) August 1, that calls on the U.S. Environmental Protection Agency (EPA) to update its 1997 Combined Sewer Overflows — Guidance for Financial Capability Assessment and Schedule Development.  A group of NACWA members has been working closely with the two U.S. Senators’ offices to help develop the legislation.  The Clean Water Affordability Act of 2008 mirrors much of NACWA’s thinking on the need for increased flexibility in assessing financial capability and would require EPA to update its guidance to ensure financial capability determinations more accurately reflect the ability of a community to pay for certain Clean Water Act requirements.  Consistent with NACWA’s previous work on financial capability, S. 3443 would require capability assessments to examine site-specific local conditions and an array of economic factors and conditions; to not rely entirely on prescriptive formulas; and to not rely on a single measure, such as median household income, for determining whether a particular Clean Water Act program is affordable or not.  In addition to directing EPA to update its guidance, S. 3443 would establish a grant program targeting distressed communities facing large investment needs for combined and sanitary sewer system improvements.  The bill authorizes $1.8 billion over five years to be distributed to the states, which would be responsible for prioritizing community needs.  NACWA will now work to encourage other Senators to cosponsor the bill.

Air Quality and Climate Change

EPA Publishes Advanced Notice on Regulating Greenhouse Gases

EPA released an Advanced Notice of Proposed Rulemaking (ANPRM) on July 30, outlining the Agency’s thoughts on how greenhouse gases (GHGs) might be regulated under the Clean Air Act (CAA).  The ANPRM was intended as a response to the recent U.S. Supreme Court decision in Massachusetts v. EPA that found that the CAA authorizes regulation of GHGs because they meet the definition of air pollutants under the Act.  The ANPRM stops short, however, of concluding that GHG emissions endanger public health and welfare, a key determination necessary for regulation under the CAA.  In a preface to the Notice, EPA Administrator Johnson further undermines the analysis in the Notice by indicating that the CAA is an “outdated law” that is “ill-suited” for the task of regulating global greenhouse gases.”  The ANPRM then spends over 160 pages reviewing the various CAA provisions that may be applicable to regulate GHGs, provides information regarding potential regulatory approaches and technologies for reducing GHG emissions, and raises issues relevant to possible legislation (e.g., a Congressional cap and trade bill) and the potential for overlap between legislation and CAA regulation.  EPA published the Notice without the approval of the Office of Management and Budget (OMB).  Due to concerns raised by other federal agencies, OMB sent the ANPRM back to EPA noting that interagency consensus could not be reached.  In an effort to “seek comment on the full range of issues”, the EPA Administrator included in the Notice the negative comments from these other agencies, including the Departments of Energy, Transportation, Commerce, and Agriculture; the Small Business Administration; and the Council on Environmental Quality, and a critical letter from OMB raising concerns about the ‘roadmap’ for regulation EPA lays out in the Notice.  Comments are not due on the Notice until November 28, 2008, after the November elections, ensuring that the issue will not be addressed until the next administration is in place.  NACWA’s relevant committees will be considering whether to comment on the Notice over the coming weeks.

Facility and Collection Systems

EPA Webcast on Combined Sewer Overflows

EPA will host a two-hour audio Web broadcast on Wednesday, August 13 from 12:00 – 2:00pm Eastern on combined sewer overflow (CSO) control technologies.  The Webcast will include information on the different types of technologies, such as their costs, operation and maintenance requirements, and the utility of the technologies in achieving removal of different types of CSO pollutants.  Topics to be discussed include: source controls, inflow removal, sewer rehabilitation, monitoring and real time control, storage technologies, high rate treatment, floatables control and others.  For more information or to register for the Webcast go to www.epa.gov/npdes/training. 

NPDES Permitting

Permit Fee Rule Clears OMB, Publication of Final Version Expected Soon

The proposed National Pollutant Discharge Elimination System (NPDES) permit fee rule, which could potentially increase user fees for NPDES permit holders, has cleared interagency review by OMB and is expected to be released in final form in the next few days.  The rule, which would provide financial incentives to states that fund at least 75 percent of their NPDES permit program through user fees, was originally proposed by EPA in January 2007.  NACWA worked with a number of other organizations including the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) to oppose the proposal and succeeded in obtaining report language in the fiscal year 2008 EPA appropriations bill prohibiting the Agency from promulgating the rule.  However, EPA has publicly stated that it does not consider the report language in the bill to be legally binding and is therefore moving forward with the final rule, which is expected to be published in the Federal Register soon.  NACWA will continue to voice its opposition to the rule and will evaluate all options to prevent its implementation, including the possibility of legal action.

Pretreatment & Pollution Prevention

NACWA Comments on Performance Measures Program

A workgroup of NACWA members from the Pretreatment & Pollution Prevention Committee has completed a review of a draft set of pretreatment performance measures developed by EPA pretreatment officials and sent the Agency the Association’s preliminary comments on August 1.  NACWA has been tracking EPA’s efforts to develop the performance measures since the 2006 Pretreatment & Pollution Prevention Workshop when EPA announced that it was pursuing the effort.  NACWA members had worked on a similar effort in the late 1990’s and expressed an interest in helping the Agency draft and refine the measures from the start.  EPA, however, did not provide any information on its efforts until the 2007 Pretreatment Workshop when the Agency unveiled a draft set of measures.  Since that time, a workgroup of NACWA members has been reviewing the performance measures and developing a list of questions and comments for the Agency.  EPA is meeting with state pretreatment officials in August and will discuss the draft measures.  NACWA is now working to schedule a conference call with EPA to discuss its comments and questions on the draft measures.  NACWA members interested in reviewing the performance measures or NACWA’s comments should contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .   

Security & Emergency Preparedness

DHS, HHS Release Key Pandemic Vaccination Policy Guidance

The U.S. Department of Homeland Security (DHS) and the U.S. Department of Health and Human Services (HHS) recently released its Guidance on Allocating and Targeting Pandemic Influenza Vaccine (PDF).  The guidance classifies vaccination target groups through four broad categories: 1) homeland and national security; 2) health-care and community support services; 3) critical infrastructure; and 4) the general population.  Across categories, pandemic vaccine will be allocated and administered according to tiers where all groups designated within a tier have equal priority for vaccination.  The groups included within each tier change based on the severity of the pandemic.  Water sector personnel have been designated as Tier 2 (out of 5 Tiers with Tier 1 being the highest priority and Tier 5 the lowest) of the critical infrastructure category for severe and moderate pandemics.  Tier 2 groups are those that provide “just in time services” (i.e., products like electricity and natural gas that cannot be easily stored), are relied on by all other infrastructure sectors for their essential operations, and contribute to public health and safety.  NACWA and other water sector groups worked with DHS and HHS to ensure their full understanding of the critical public health functions that clean water agencies perform on a daily basis as well as the reliance of other infrastructure sectors on these services and this was reflected in this guidance.  NACWA will be providing additional details on the guidance in upcoming publications.

NACWA Member Input Needed on WERF Study on Early Warning Systems

NACWA members are being asked to complete a brief survey in support of an EPA grant-funded project that the Water Environment Research Foundation (WERF) is conducting.  The project (# 04-cts-9S) will result in the development of a strategy for the eventual deployment of Early Warning Systems (EWS) to protect wastewater utilities by providing timely information on chemical/biological/radiological (CBR) contaminants introduced (intentionally or accidentally) into collection systems. As part of this research, a questionnaire has been developed to gather information on current sensors and monitoring at wastewater utilities. WERF is looking for public agencies to fill out the questionnaire (click on the hyperlink below) to provide background information for the survey.  The Questionnaire is being conducted online by WERF’s contractor at http://eh2o.saic.com/utilities_Questionnaire

Water Quality

EPA to Hold Several Laboratory Advisory Board Meetings

EPA’s Environmental Laboratory Advisory Board (ELAB) has announced several upcoming meetings during which the Board will discuss several issues important to the NACWA membership.  The Board will be meeting via teleconference on August 20, 2008 at 1 p.m.; September 17, 2008 at 1 p.m.; October 15, 2008 at 1 p.m.; November 19, 2008 at 1 p.m.; and December 17, 2008 at 1 p.m. (all Eastern Time) to discuss the ideas and views presented at the previous ELAB meetings, as well as new business.  Items to be discussed by ELAB over these coming meetings include: 1) Expanding the number of laboratories seeking National Environmental Laboratory Accreditation Conference (NELAC) accreditation; 2) proficiency testing; 3) ELAB support to the Agency's Forum on Environmental Measurements (FEM); 4) implementing the performance approach; and 5) follow-up on some of ELAB's past recommendations and issues.  NACWA members interested in participating on the teleconferences should call Lara P. Autry at (919) 541-5544 to obtain teleconference information.  In addition to these teleconferences, ELAB will be hosting their next face-to-face meeting on August 11, 2008 at the Hyatt Regency Washington on Capitol Hill in Washington, DC at 1:30 p.m. (ET).  NACWA member Jim Pletl, Chief, Technical Services, with the Hampton Roads Sanitation District chairs the ELAB.

NACWA Weighs in on CAFO Regulations

NACWA wrote Benjamin Grumbles, Assistant Administrator for Water, July 9, to raise several concerns with the Agency’s proposal for regulating concentrated animal feeding operations (CAFOs).  Although the official comment period for the rulemaking is closed, NACWA felt it critical to go on the record with several concerns regarding the Agency’s decision to back off on its proposed controls for CAFOs, one of the few nonpoint sources under the regulatory authority of the Clean Water Act.  The supplemental notice was in response to a decision from the Second Circuit (Waterkeeper Alliance v. U.S. EPA) that EPA interpreted as limiting its authority to require permits for CAFOs.  Instead, the agency proposed to create a self-certification program for CAFOs, allowing the feedlots to certify that they will not discharge pollutants to waters of the United States.  NACWA urged the Agency to more rigorously track CAFOs and to require that more robust nutrient management plans be developed and implemented.

Update on WERF Nutrient Activities

In 2007, WERF started a new multi-year Nutrient Removal Challenge program to identify, assess, and make recommendations for improvement of sustainable wastewater nutrient removal technologies and provide information to help agencies meet receiving water body requirements and other wastewater treatment goals (e.g., climate change, sustainability, cost-effectiveness, reliability).  The WERF nutrient removal program has made great strides over the past year:

1) Their team of experts launched a new web portal with research information and relevant links. The site includes Executive Summaries and other information on WERF research.  It also lists several opportunities to participate and/or fund specific research projects, etc.

2) WERF developed key topics for the online Nutrient Limit of Technology (LOT) Compendium – a comprehensive, living document that discusses regulatory and technological nutrient removal issues. Each topic is presented as a series of questions and answers addressing nutrient removal to very low levels (near LOT).

3) WERF initiated collaborative research efforts in three key areas:
• Effluent organic nitrogen / refractory dissolved organic nitrogen (RDON). This effort explores the scientific basis of biodegradable / bioavailable organic nitrogen, working in collaboration with research projects sponsored by the National Science Foundation, private companies, public utilities, and the Polish government.
• An effort studying phosphorus analysis and measurement at very low limits to determine the accuracy of current standard techniques.
• Development of a protocol for testing carbon sources, looking at alternative external carbon for denitrification to reduce cost and improve efficiency of nitrogen removal.

WERF will hold a web seminar on nutrient removal on Wednesday, October 8.

EPA Issues Draft Guidance on Bioaccumulation Factors

EPA recently issued draft guidance on the development of site-specific bioaccumulation factors (BAFs).  The original comment deadline of August 14 has been extended for 45 days until September 29, and NACWA will be collaborating with the Federal Water Quality Coalition (FWQC) to determine if there are issues with the draft that require comments.  In 1995 EPA developed a new method for setting human health-based water quality standards, based on fish consumption.  This new method used bioaccumulation factors (BAFs), as opposed to the old approach of bioconcentration factors (BCFs).  The new method results in water quality standards becoming much more stringent for bioaccumulative chemicals such as mercury, PCBs and dioxin, and for other organic chemicals as well.  At first, this method was required only in the Great Lakes Basin, as part of the Great Lakes Initiative (GLI) rules.  However, in 2000, EPA issued a new national human health criterion methodology, which relies on the use of BAFs.  One of the primary concerns is EPA's default approach for states to use "national BAFs" that are purposely over-conservative.  EPA's methodology allows states to calculate site-specific BAFs instead, using data from particular sites, but that process is difficult, time-consuming and costly.  Without EPA guidance explaining how to do site-specific BAFs in a way that will be approved by EPA, it would be unlikely that states would take advantage of the opportunity.  The recently released draft guidance seeks to provide states with the information necessary to calculate site-specific BAFs.  It discusses, at great length, each of the various approaches that can be used for developing site-specific BAFs.  NACWA will be collaborating with the FWQC and potentially other stakeholders who are reviewing the guidance to determine if the Association needs to file comments.

EPA Announces Data Collection Effort, NAS Study on Pharmaceuticals in Water

EPA announced August 6, that it was seeking comments on an Information Collection Request (ICR) on pharmaceutical handling practices at the nation’s health care facilities. EPA intends to conduct a detailed study of unused pharmaceutical disposal methods by hospitals, long-term care facilities, hospices and veterinary hospitals and the ICR is a required administrative step for agencies seeking to collect information from a large group of stakeholders.  EPA’s press release indicated that the Agency is seeking more information on the practices of the health care industry to inform future potential regulatory actions, and identify best management and proper disposal practices.  The announcement comes after EPA Office of Water Assistant Administrator Benjamin Grumbles faced a tough line of questioning regarding the Agency’s existing efforts on pharmaceuticals in water during a Senate hearing this past April.

The Agency also announced that it is commissioning the National Academy of Sciences to provide scientific advice on the potential risk to human health from low levels of pharmaceutical residues in drinking water.  The National Academy of Sciences will convene a workshop of scientific experts December 11-12, to advise the agency on methods for screening and prioritizing pharmaceuticals to determine potential risk.  EPA will accept public comments on the ICR for 90 days after it is published in the Federal Register.  NACWA’s Emerging Contaminants Workgroup will discuss these new EPA initiatives when it meets via teleconference on August 13, and will discuss whether the Association needs to comment on the draft ICR.  More information on EPA’s research and response to pharmaceuticals and personal care products in the environment and a pre-publication copy of the ICR are available on EPA’s website http://www.epa.gov/waterscience/ppcp/.