» Clean Water Current Archive

September 10, 2010

NACWA Meets with Key EPA, OMB Personnel in Final Push on Incineration Issues

With the comment period on EPA's definition of solid waste rule now closed, the proposed maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs) under review at the Office of Management and Budget (OMB), and EPA determined to meet a December 2010 deadline to finalize both, NACWA met this week with EPA and OMB to reiterate its arguments that SSIs are more appropriately regulated under Section 112 of the Clean Air Act (CAA) rather than Section 129.

NACWA met with the Office of General Counsel at EPA to again highlight its position that Section 112(e)(5) of the Clean Air Act (CAA) clearly directs EPA to develop air standards for publicly owned treatment works (POTWs) and, by logical extension, the SSIs they own and operate, under 112.  EPA has never addressed this section of the CAA before and NACWA remains optimistic that the Agency will at least seek comment on this key legal argument, opening the door for NACWA to provide official input on why it believes SSIs are indeed part of the POTW and, as such, must be regulated under 112.

With the proposed MACT standards now under review at OMB, NACWA also met with the lead staff in OMB’s Office of Information and Regulatory Affairs who have responsibility for the rule.  OMB will be looking at the proposal from a cost-impact standpoint and NACWA reiterated that under a worst-case scenario, the SSI community could be facing capital costs as high as $3.3 billion dollars.  In addition, NACWA underscored the same legal arguments that it raised with OGC – that Congress specifically directed EPA to handle SSIs under 112, and that the current effort to develop standards under 129 is in conflict with that direction.

In addition to its focus on the CAA arguments, NACWA’s attention also remains fixed on the efforts of EPA’s Office of Resource Conservation and Recovery and its proposed definition of solid waste.  NACWA met with the head of that office to continue to push the Agency to exclude sewage sludge that is combusted from its regulatory definition of solid waste in order to preserve the existing regulatory framework under Part 503, and ensure that SSIs are regulated under 112.  The outcome of this rule will also have a major impact on the use of biosolids as a fuel in combustion units other than SSIs.

While EPA should have no trouble finalizing the definition of solid waste rule by December, NACWA has major concerns with the pace of the SSI MACT rule development.  With OMB review currently underway, it may not be until early October until a proposal is released for public comment.  That will leave little time for meaningful public comment and for EPA to finalize the rule and return it to OMB for a final check before its December 15, 2010 court-ordered deadline.  NACWA has been advocating on the SSI issue with all key offices and will continue to do so and to keep the membership informed of all significant developments.

NACWA Weighs in with Justice Department on Stormwater Fees

NACWA sent a letter to the U.S. Department of Justice's (DOJ) Office of Legal Counsel this week making the case that impervious area charges and stormwater charges levied by municipal wastewater and stormwater agencies should be classified as fees for service and not as taxes — a finding that would result in federal facilities being required to pay these charges.  The letter, drafted with the assistance of NACWA's Targeted Action Fund, was sent in response to the growing problem of federal government facilities refusing to pay local impervious area charges or stormwater fees by claiming that such charges represent an impermissible tax on the federal government.

NACWA’s letter follows up on previous correspondence sent to DOJ in April and lays out in detail both the legal and policy arguments as to why such charges should be considered fees payable by the federal government.  The letter highlights U.S. Supreme Court precedent detailing the test for determining if a charge is a fee or a tax and provides examples of how existing programs that charge based on impervious area assessments meet the legal qualifications to be considered a fee and not a tax.  The letter also presents policy arguments, including the fact that a refusal by the federal government to pay these fees unfairly puts a heavier financial burden on other local ratepayers, who are often the least able to bear these costs due to the ongoing economic downturn.

The letter requests that DOJ issue a legal opinion outlining how impervious area charges and other stormwater fee programs can be structured to ensure they are considered a fee and not a tax so that municipalities can be assured that federal facilities will pay their appropriate share.  Additionally, the letter also requests a meeting with DOJ officials to further discuss the issue.  The letter, which was being finalized at press time, will be posted on NACWA’s Stormwater Management webpage.  NACWA will report on any response to the letter and subsequent developments.

NACWA Urges Obama Administration to Include Clean Water Funding in Economic Stimulus Proposals

NACWA sent a letter this week to President Barack Obama commending his Administration for its support of increased funding for clean water programs over the last two years, including the passage of the American Recovery and Reinvestment Act (ARRA or stimulus package) and urging the inclusion of clean water funding in any proposed infrastructure package designed to put Americans back to work and to spur the economy.  The letter focused on the growing national funding gap and the proven capability of public clean water agencies to get shovels in the ground and put people to work as demonstrated by the ARRA.  The letter was timed to swiftly follow the President’s Labor Day announcement that his Administration supports the passage of a $50 billion infrastructure package, which is clearly focused on aiding the transportation sector.   NACWA will continue to ensure that clean water infrastructure funding is part of the discussion in Congress and the Administration as additional economic stimulus initiatives proceed.

EPA to Hold September 14 Web Seminar on NPDES Electronic Reporting Rule

On September 14 at 1:00 pm (Eastern) EPA will be hosting a web seminar specifically for national pollutant discharge elimination system (NPDES) permittees and their trade associations to provide information on the development of the proposed NPDES Electronic Reporting Rule.  NACWA will be participating in the web seminar and encourages interested members to participate as well, and ask questions or provide informal comments related to the proposed rule's development.  Anyone can register for free by visiting http://www.regulations.gov/exchange/topic/npdes/events/upcoming.  NACWA has participated in public meetings on this proposal previously and will provide comments to EPA at the appropriate time.  EPA is expecting to propose the rule in May 2011 and publish a final rule in September 2012.

NACWA Comments on Proposed Regulations for Internal Combustion Engines

NACWA submitted comments this week on EPA’s proposed revisions to the standards of performance for new stationary compression ignition and spark ignition internal combustion engines (ICE).  NACWA generally supports the new source performance standards (NSPS), particularly the proposed emissions standards for nitrogen oxides that eliminate the need for emission reduction after-treatment technologies for certain emergency engines.  While the proposed NSPS keep the compliance requirements geared toward the manufacturers of the engines – rather than owners and operators – NACWA commented that the requirement for performance testing would be too burdensome for owners and operators.  NACWA also requested that EPA consider an exemption for engines that use digester gas, since it may be difficult for these engines to meet the proposed emissions standards.  As stated in the comments, “. . . utilities should be encouraged to use digester gas engines, rather than face a situation where it is more cost-effective to purchase power from an electric utility and to waste a valuable fuel source by flaring the digester gas.”  NACWA will keep members informed about developments in the proposed NSPS for ICE and other air quality regulations.

NACWA, WIN Push for Increased Funding Through SRF Passage and Regulatory Relief

As part of a key effort to get state revolving fund (SRF) reauthorization legislation to the President for his signature this year, NACWA and the Water Infrastructure Network (WIN) sent a letter to Senate leadership urging them to schedule the bipartisan Water Infrastructure Financing Act (S. 1005) for floor consideration during the lame-duck session of this Congress.  The letter indicated the broad support for the legislation as evident in the 17-2 passage of the bill by the Senate Environment & Public Works Committee in July 2009.  The letter states, “. . . this legislation enjoys substantial bi-partisan support in the Senate and is deserving of consideration before the close of the 111th Congress.”  The letter also highlighted the beneficial short-term and long-term economic and employment benefits the legislation would have if approved.  S. 1005 “makes eminent economic sense, creating jobs in the near-term and enhancing America’s competitiveness over the long-term,” notes the letter.  NACWA urges its member agencies to contact their Senators and ask them to press Senate leadership to schedule the bill for floor consideration.  For more information on how you can help NACWA push the SRF bill to passage please contact John Krohn, NACWA’s Legislative Manager, who can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202-833-2672.  

At the same time, NACWA is working to ensure that wastewater infrastructure projects remain affordable.  During August, the Association continued to build support for the effort to require EPA to update its outdated 1997 Combined Sewer Overflow Guidance for Financial Capability Assessment and Schedule Determinations to allow for greater flexibility in project implementation.  While the guidance applies to financial capability considerations associated with combined sewer overflow (CSO) correction projects, NACWA is urging EPA to revise the approach to affordability and financial capability determinations to consider the compliance costs with the full suite of water quality pollution abatement projects under the Clean Water Act as part of the broader Money Matters campaign.

NACWA Completes Flow Series with Successful Web Seminar on Legal Issues Surrounding Green Infrastructure

NACWA closed out its Flow Series of web seminars with a bang this week with over 120 people participating in a seminar addressing the legal and regulatory hurdles involved with the use of green infrastructure to control wet weather flows.  The web seminar, Green Infrastructure: What’s Legal?, featured Jennifer Abdella of NACWA Legal Affiliate Beveridge & Diamond and MaryLynn Lodor of NACWA member agency the Metropolitan Sewer District of Greater Cincinnati (MSDGC) as speakers and looked at both the legal and regulatory considerations clean water utilities must confront when pursuing green infrastructure.

Ms. Abdella identified a number of potential legal impediments to green infrastructure that clean water and stormwater agencies should evaluate, including existing plumbing codes, zoning codes, and municipal ordinances, as well as the need to coordinate green infrastructure plans with other municipal agencies such as transportation and parks departments.   She also highlighted the importance of public-private partnerships in making green infrastructure projects successful and suggested ways clean water and stormwater agencies can engage private landowners to make these partnerships effective.  Ms. Lodor then provided a utility perspective on the use of green infrastructure techniques in an urban setting, describing how MSDGC has incorporated green techniques in their efforts to reduce stormwater flow into their sewer system and limit the impacts of wet weather events.   A brief question-and-answer session followed the two presentations.

The Flow Series was a critical component this year of NACWA’s Wet Weather Advocacy Project and consisted of four web seminars addressing key wet weather issues affecting clean water and stormwater utilities.  Previous seminar included topics such as climate change, water quality impacts, and stormwater management techniques.   Archived copies of all the Flow Series web seminars are available on NACWA’s website.

NACWA Raises Concerns with EPA Approval of Nanosilver Pesticide Use

NACWA commented this week on the proposed conditional registration of a nanosilver active ingredient that will be used as a preservative in textiles.  NACWA's letter raised concerns regarding the public benefit of these types of products and the assumption that they will not cause unreasonable adverse effects.  NACWA’s comments responded to the registration of a product manufactured by HeiQ, but addressed the broader issue of using nanosilver in textiles and, the lack of available information on the potential environmental impacts given the unique properties of nanosilver.  NACWA has weighed in on the use of silver-based pesticide uses that might introduce silver into the wastewater system several times in the past.  The top concern with this latest approval is that it would be the first such approval for a nanosilver product.  NACWA provided EPA with references to two studies that suggest that nanosilver may have different impacts than larger particles of silver on the wastewater treatment process and in particular on nitrifying bacteria.  EPA is requiring the manufacturer to produce new studies on the unique impacts of nanosilver, but NACWA raised objections to EPA’s conditional approval for use of the product while these studies were being conducted.  NACWA will follow up with the Office of Pesticide Programs at EPA to determine what if any next steps will be taken before the approval is granted.

Registration Now Open for 2010 NACWA Law Seminar

Registration is now open for NACWA’s 2010 Developments in Clean Water Law Seminar, scheduled for November 17-19 in Santa Fe, New Mexico.  The Seminar will once again deliver an exciting and educational program addressing the hottest topics in clean water law for lawyers and agency leaders alike.  With clean water and stormwater utilities facing an increasingly complex legal and regulatory climate, this year’s Seminar will provide attorneys and utility managers with the critical insights necessary to understand the many complicated current legal and regulatory issues confronting the clean water community.  The Seminar will include a look at some of the new regulations expected soon from EPA on issues such as stormwater, sanitary sewer collection system issues, and nutrients – including the potential legal ramifications these new regulations could have on clean water utilities from coast-to-coast.  Municipal wet weather consent decrees will also receive substantial attention during the Seminar, including a review of trends from recently entered decrees and a look at how affordability issues are playing a more prominent role in consent decree negotiations.

CLEs Offered/Hotel Reservation Deadline is October 15
As in past years, Continuing Legal Education (CLE) credits will be available for attorneys attending the Seminar, including ethics credits.  Additional information on the Seminar, including a preliminary agenda, CLE information, and hotel and registration information is now available on NACWA’s website.   Hotel reservations must be made by October 15 to receive the discounted conference rate.  Be sure to join your clean water colleagues for this informative event!

National Environmental Achievement Award Submission Deadline Is Approaching!

NACWA is currently accepting nominations for the 2011 National Environmental Achievement Award (NEAA) program, recognizing individuals and member agencies for their actions and initiatives in the interest of the environment.  The application deadline for the 2011 awards is fast approaching, and submissions are due by Friday, Oct. 8.

The NEAA program honors individuals and member agencies that have made extraordinary contributions through outstanding advocacy or innovative projects that have had a positive impact on the environment, their utility, their community, NACWA, and/or the clean water industry.  To apply or view the application guidelines and criteria visit www.nacwa.org/neaa.  Please contact Kelly Brocato at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or at 202/833-1449, with any questions regarding the 2010 NEAA program.