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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to June 30, 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

NACWA Takes Steps to Respond to EPA Notice on Sanitary Sewer and Blending Issues

EPA published a notice June 1 seeking public input through a series of listening sessions on several sanitary sewer collection system issues, including sanitary sewer overflows (SSOs), system operation and maintenance, and blending to help the Agency “shape any possible future regulatory proposals”.  NACWA has long-advocated for the development of a holistic and integrated approach to addressing SSOs and managing collection systems, and believes the notice is an important step in the right direction.  NACWA Advocacy Alert 10-14 provides a brief summary of the EPA notice and the key issues on which the Agency is seeking comment and solicits input from the membership.  NACWA met with key EPA staff June 16 (see related story) to get more details on the Agency’s planned next steps and its overall timetable.  A small working group of NACWA committee leaders and members – that had been tapped by the Board of Directors to work a petition to compel EPA to initiate a rulemaking effort on SSOs – is now tailoring its work to serve as the foundation for the Association’s comments on the notice.

NACWA attended the listening sessions in Seattle, Atlanta, and Kansas City and plans to provide remarks during the July 13 session in Washington, D.C.  While attendance at the Seattle and Atlanta sessions was fairly low, the Kansas City session included about 60 attendees and more than 20 speakers.  The discussions following the prepared remarks portion of the listening sessions provided for some spirited debate on the issues EPA is exploring.  Top concerns include the need for better consistency, especially in reporting of overflows, and the potential impact a national program may have on existing state initiatives.

NACWA Meets with Senior EPA Staff on Sanitary Sewer System Rulemaking Effort

NACWA met June 16 with Jim Hanlon, Director of the Office of Wastewater Management, and other senior Agency staff to discuss EPA’s effort to gather input on the need for national regulations governing the management of sanitary sewer systems.  EPA announced in a June 1 Federal Register Notice (see related story) that it was seeking information on a list of issues surrounding collection system management, sanitary sewer overflows (SSOs), and peak excess flow “blending” through a series of listening sessions and a written comment period.  During the meeting, Hanlon confirmed that his office is recommending to senior EPA officials that regulations be developed for sanitary sewer systems and indicated that the Administrator herself has been briefed on the issue.

NACWA also learned that the draft 2001 SSO rule, which was never published and was formally withdrawn by the Bush Administration, will be a 'data point' in EPA's new effort, but will not serve as the foundation for a new rulemaking effort.  EPA will be looking to other resources that NACWA helped shape for its decision-making process including The Sewer Overflow Community Right to Know Act (H.R. 2452), which passed the U.S. House of Representatives in 2009, and the Core Attributes of Effectively Managed Wastewater Collection Systems (slated for release in July 2010).  EPA is using the listening sessions and public comment period to determine exactly what elements it should include in the rule for sanitary sewer systems – and whether to address blending by itself or as a part of the larger rulemaking effort.  NACWA indicated its strong preference for a holistic approach that addresses blending and SSOs together.  The input received between now and the close of the comment period on August 2 will factor heavily in EPA’s decision-making process.  Hanlon indicated that his office has no specific schedule at this point for the rule, but hopes to make significant progress toward issuing a proposed rule and potentially seeking finalization before the end of the current administration.

NACWA Responds to NRDC Letter on Nutrients

NACWA sent Assistant Administrator for Water Pete Silva a letter June 8 outlining why a one-size-fits-all, technology-based approach to nutrient control would waste limited public resources and result in little or no discernable water quality improvements in many watersheds.  NACWA’s letter responds to an April 21, 2010, letter from the Natural Resources Defense Council (NRDC) and several other environmental groups, that urges EPA to grant the November 2007 petition filed by the same groups seeking to modify the definition of secondary treatment to including nutrient removal.  In the letter, NACWA addresses the policy, technical, and legal reasons why EPA should deny the petition.  The primary issue raised in NRDC’s April 21 letter was that the cost to implement nutrient controls at the Nation’s POTWs is both reasonable and manageable.  NRDC suggests that the expense of upgrading treatment plants is NACWA’s primary reason for objecting to the petition, but NACWA’s letter notes that cost is "neither the most important nor the most compelling reason to deny the petition" and has never been the driving force behind NACWA’s concerns.  NACWA’s letter underscores that even using NRDC’s conservative and "reasonable" cost figures, a national technology-based mandate could cost the clean water community more than $280 billion dollars.  More importantly, however, NACWA notes that such a mandate would not address what NRDC refers to as "failures" of the current programs.  Under a national secondary treatment-based nutrient regime, POTW contributions would be reduced, but many waters would still not meet standards, states would still be slow to develop nutrient goals (and may lose all motivation to develop such goals if the only controllable source is already regulated), and impaired waters would still be overlooked and not listed for TMDL development.  NACWA’s letter states that if "these are the symptoms of the failing system, then we must work to fix the system.  The system needs new approaches that can recognize the unique characteristics of nutrients as a pollutant."

Rather than continuing to rely only on the existing menu of approaches being used under the CWA’s water quality programs, or reverting to a technology-based approach that requires the same level of control regardless of water quality, NACWA believes that "we must consider new and innovative approaches to addressing the unique properties of nutrients as a source of water impairment…all options should be evaluated…but the selection of those approaches must be smart, reasonable, and legally justified."  NACWA’s letter points to its upcoming Summit (see related story) on nutrient issues this September as an important step in identifying the new concepts and approaches that will help to improve our management of nutrient pollution.

Air Quality

Revisions Proposed to Emission Standards for Internal Combustion Engines; NACWA Seeks Member Input

In a June 8 Federal Register notice , EPA proposed revisions to the new source performance standards (NSPS) that were originally published in 2006 for new compression ignition (CI) and spark ignition (SI) stationary internal combustion engines (ICE).  The proposed requirements may affect NACWA members that plan to install new engines at their facilities.  The original NSPS restricted emissions of particulate matter, nitrogen oxides (NO_X), non-methane hydrocarbons, and carbon monoxide from new stationary CI engines, and also limited sulfur levels in diesel fuel used in these engines.  For most engines, the compliance requirements were directed towards the manufacturers of the engines, while owners and operators were required to operate and maintain their engines according to the instructions of the manufacturer.

After the original NSPS rule was promulgated, EPA received comments that the standards were not feasible for certain engines and that owners and operators did not have enough flexibility to deviate from the manufacturers’ operation and maintenance procedures.   EPA has responded to these comments with the proposed revisions, which will make emissions standards for stationary ICE consistent with recent revisions of the standards for similar mobile source marine engines.  For stationary CI engines with a displacement greater than or equal to 10 liters/cylinder (l/cyl) and less than 30 l/cyl, two tiers of emissions standards must be met.  The first tier is divided by displacement and is based on engine technologies, while the second tier of standards is divided by maximum engine power and is expected to be met with the use of catalytic exhaust aftertreatment.  The required technologies for both tiers are already in use or expected to be used for other mobile and stationary engines.  For stationary CI engines with a displacement greater than or equal to 30 l/cyl, EPA has proposed standards for NO_X emissions to match international standards that EPA has also approved for marine engines.  For emergency engines of this displacement, EPA has proposed to make the requirements the same as for smaller engines, with no aftertreatment required to meet NO_X standards.

In addition, EPA has proposed more flexibility for owners and operators of engines by allowing them to develop their own operation and maintenance plans for ICE as an alternative to manufacturer procedures.  However, EPA will require additional testing and recordkeeping from owners and operators who choose to do this.  Finally, EPA has proposed minor revisions to the new SI ICE standards to make them consistent with the CI ICE standards.

NACWA’s Air Quality Workgroup is reviewing the proposed revisions, and NACWA will provide comments to EPA by the August 9 deadline.  NACWA requests that members provide input to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by July 23 for inclusion in the comments.

Biosolids

NACWA Advances Clean Air Act Legal Arguments on Incineration with EPA Attorneys

NACWA briefed the lead EPA Office of General Counsel (OGC) attorney working on the Clean Air Act (CAA) Section 129 maximum achievable control technology (MACT) emissions standards for sewage sludge incinerators (SSIs) June 17 on the Association’s legal arguments that SSIs are more appropriately regulated under Section 112 of the CAA.  NACWA argued that the Clean Water Act (CWA) definition of a publicly owned treatment work (POTW) includes POTW-operated SSIs and highlighted that EPA has consistently determined that SSIs are more appropriately regulated under CAA Section 112.  NACWA also noted that POTW-generated sludges are not ‘from commercial or industrial establishments or the general public’, a key applicability provision for Section 129 standards, but are in fact generated by the POTW.  While EPA is not likely to change direction before the proposed rule stage, NACWA is asking that the Agency seek comment on these issues to ensure they are included as viable options at the final rule stage.  The proposed MACT standards for SSIs are expected to be released in the next few weeks, although the rule package has not yet been sent to the White House Office of Management and Budget (OMB) for its review.  NACWA will be discussing these issues at the Biosolids Management Committee meeting in July during NACWA’s Summer Conference & 40th Anniversary Annual Meeting in San Francisco.

Conferences and Meetings

NACWA Nutrient Summit Set for September 16-17

A small workgroup of NACWA members met recently in Washington, D.C. to begin planning for the Association’s Nutrient Summit, now set for September 16 and 17 in Chicago.  The day and a half meeting will feature presentations from key stakeholder groups, including agriculture and environmental NGO groups, and discussions of the state and regional approaches to nutrient management from around the country that are working, and may serve a model for others.  The Summit will be a ‘roll up your sleeves’ works session during which a facilitator will seek to reach consensus among the participants on a suite of concepts that the clean water community could take forward and offer up as scientifically valid, appropriate approaches to address nutrient pollution.  More details on the Summit will be provided to the membership later this month.

Register Today for NACWA’s 2010 Summer Conference

Join NACWA as it commemorates and celebrates the Association’s 40th anniversary at its 2010 Summer Conference & 40th Anniversary Annual Meeting, July 20-23, 2010. We invite you to register now and join your clean water colleagues from across the country for a unique opportunity to network with other utility leaders and innovators.  The conference theme, Sustainable Resource Management – Lessons from Clean Water’s Past & Present, will explore the evolution of clean water – from the relative simplicity of water pollution control to the complex universe of sustainable resource management.  Recipients of NACWA’s National Environmental Achievement Awards and Peak Performance Awards will be recognized, as will the inaugural class of honorees of the new NACWA Hall of Fame.  San Francisco will also serve as the backdrop for a special celebration of NACWA’s four decades of commitment to clean water, as well as the ever-popular facility tour and NACWA Open Golf Tournament.  Registration discounts are available now for multiple registrants from the same utility.  Contact the Fairmont San Francisco at 415.772.5000 to guarantee the special conference rate of $269 single/double.  We look forward to seeing you next month in San Francisco!

Water Quality

EPA Issues Guidance Clarifying Requirements for CAFOs

On May 28, EPA issued Implementation Guidance on CAFO Regulations –  CAFOs That Discharge or Are Proposing to Discharge , that aims to clarify what concentrated animal feeding operations (CAFO) must do to comply with federal clean water regulations and to assist CAFO owners in determining whether their operations need a Clean Water Act (CWA) permit.  Under EPA regulations (40 C.F.R. Part 122.23), CAFOs must acquire a National Pollutant Discharge Elimination System (NPDES) permit if they discharge or propose to discharge pollutants, but court challenges to previous EPA policies on the issue have cast doubt on which CAFOs are subject to CWA permitting.  The guidance is an outgrowth of a settlement agreement between EPA and several environmental groups in which EPA agreed to strengthen oversight of animal feedlots where discharges are having an impact on water quality.  Under the settlement agreement EPA agreed to propose that within one year all CAFOs will be required to submit details to the agency about their operations and to update the information every five years.  NACWA continues to follow developments on the CAFO issue as EPA continues to signal its intent to expand its authority over this major source of water pollution.

EPA Science Panel to Review Portions of Florida Nutrient Criteria, Kansas Likely Next to Face Lawsuit

EPA recently announced a change in its schedule for issuing numeric nutrient criteria for Florida.  On June 7, EPA and environmental NGO groups agreed to an extension of some of the deadlines in the consent decree driving EPA’s involvement in Florida.  The extensions apply primarily to the standards for coastal and estuarine waters, which are in the second round of standards that EPA plans to set for Florida waters.  Those standards will now be proposed by November 2011 and must be finalized by August 2012 – a 10-month extension from the current deadlines.  The same extensions would also apply to downstream protection values for estuarine waters and to the standards for canals in South Florida, which have now been moved from the first round of standards to the second round.  The schedule for lakes and for rivers and streams, and the downstream protection values for lakes, has not been changed, and those rules still must be issued by October 2010 according to the consent decree.  The purpose of the extension is to allow for Science Advisory Board (SAB) review of the second round of Florida standards.  EPA issued a Federal Register notice June 21 seeking nominations to this new SAB panel.  Nominations are due by July 12.  NACWA plans to weigh in with EPA to ensure a representative SAB panel.

In Kansas the Friends of the Kaw (FOK), a local environmental group dedicated to the protection of the Kansas River and its tributaries, have sent EPA Administrator Lisa Jackson a notice of intent to sue for EPA’s failure to develop numeric water quality criteria for nutrients in Kansas.  Making similar arguments to those raised in Florida and Wisconsin, the letter is the latest in what could be a growing trend of local and state environmental groups looking to Florida as evidence that such a strategy may succeed in their state.

NACWA Argues before Environmental Appeals Board in WET Permit Appeal

NACWA participated in oral arguments June 7 before EPA’s Environmental Appeals Board (EAB) in support of a permit appeal by NACWA member agency the San Jacinto River Authority (SJRA) over a discharge permit that was inappropriately federalized by EPA Region VI to include contested whole effluent toxicity (WET) provisions.  The case focuses on EPA’s decision to take over the permit and include WET requirements despite the fact that Texas’s EPA-approved water quality standards did not require WET limits and were also not required in an earlier state-issued permit.  NACWA’s arguments before the EAB focused on the fact that EPA 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 stressed that while EPA has discretion to veto state issued NPDES permits under the Clean Water Act (CWA) if water quality standards are not met, in the case of SJRA the Agency’s actions were inappropriate because it gave no reasonable and adequate rationale why the original state permit was insufficient.  This position echoed that of SJRA, which argued that the regulated community needs to be able to rely on well-settled principles that offer consistency and can be easily followed. The EAB judges seemed receptive to the arguments of NACWA and SJRA and have taken the matter under advisement.  A decision is expected in the coming months.  Additional information on the case and copies of NACWA’s filings with the EAB are available on NACWA’s Litigation Tracking webpage.

EPA Proposes Changes to Analytical Method Rules

EPA announced in a June 23 Federal Register notice that it is proposing minor amendments to its NPDES regulations to clarify that permittees must use “sufficiently sensitive” analytical methods when performing sampling and analysis pursuant to CWA permit requirements.  The issue has most recently been raised in the context of mercury monitoring, for which EPA has several approved test methods with varying levels of sensitivity.  EPA clarified in a memo from 2007 that for mercury, permittees must use a method that is “sufficiently sensitive” to be able to quantify the level of mercury at or below the water quality criterion.  EPA is proposing to expand this “sufficiently sensitive” language to all chemical-specific methods and include in the regulations at 40 CFR Part 122 a definition of “sufficiently sensitive”.  NACWA is reviewing the proposal and will provide comments by the close of the comment period on August 9.

Stormwater

NACWA Comments on DC Municipal Stormwater Permit

NACWA submitted comments June 4 on the draft municipal separate stormwater sewer system (MS4) permit issued to the District of Columbia in April of 2010.  In its comments, NACWA continued to stress the importance of EPA addressing affordability and financial capability issues in a holistic manner in such permits.  The Association also urged EPA to provide support for the use of green infrastructure as a way to help control stormwater runoff.  NACWA supported the Agency’s requirements for new development or redevelopment that would ensure that a certain percentage of stormwater be retained on-site, provided that there are alternative options available due to site-specific constraints.  The Association is concerned, however, that the overall scope and the broad reach of many of the permit requirements will place significant financial hardships on the District, without offering sufficient clarity as to the water quality improvements that would be achieved.

NACWA was pleased to see that the retrofit program requirement allows for a lower performance standard based on site-specific conditions, and for off-site mitigation or payment-in-lieu options to meet the runoff management goal.  The Association believes, however, that EPA must revise the draft permit to allow a more gradual phasing-in of the retrofit and redevelopment requirements after more is known about their environmental and financial impacts.  In line with the Association’s long-standing position, NACWA stressed the importance of EPA removing any potential for numeric effluent limits for MS4 discharges from the permit because it would otherwise conflict with the requirements clearly expressed in Section 402(p) of the Clean Water Act.