The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the January 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to January 11, 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 or Cynthia Finley at 202/296-9836 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 to Consider Regulating Biosolids Incinerators Under Clean Air Act Section 129

NACWA has learned that EPA will again consider the regulation of biosolids or sewage sludge incinerators (SSIs) under Section 129 of the Clean Air Act (CAA), in lieu of Section 112.  NACWA has advocated since the mid-1990s that SSIs should be regulated under CAA Section 112, which governs toxic emissions, and filed comments in August 2006 detailing why regulation under Section 129, which covers solid waste incinerators, would not be appropriate.   Under Section 129, SSIs would, at a minimum, be subject to numeric emissions limits for particulate matter, sulfur dioxide, nitrogen oxides, hydrochloric acid, carbon monoxide, cadmium, mercury, lead, dioxins, and furans.  New SSIs would be required to meet best available control technology limits and existing SSIs would be subject to the average emissions levels achieved by the best performing 12 percent of units in the category.  Under Section 112, SSIs would be regulated as area sources and subject to less stringent, but still significant, emissions standards.  NACWA believes that regulation under Section 129 would likely lead to the closing of many SSIs nationwide.

On January 9, NACWA met with Bob Meyers, EPA’s First Deputy Assistant Administrator for Air, to discuss the issue.  A decision issued June 8, 2007 by the D.C. Circuit Court of Appeals in Natural Resources Defense Council v. EPA vacated and remanded both the Commercial and Industrial Solid Waste Incinerator Definition Rule and the Boilers Rule.  At issue were EPA’s past determinations regarding which incineration units should be handled under Section 112 versus 129.  While the Other Solid Waste Incinerator (OSWI) rule was not specifically addressed in the case, EPA’s Office of General Counsel believes the decision requires the Agency to also reconsider its December 16, 2005 final OSWI rule in which it determined that SSIs are not OSWIs and should be covered under Section 112¹.  Reconsideration of the OSWI rule will trigger a new rulemaking process during which EPA must again determine whether SSIs are OSWIs subject to Section 129, or whether SSIs are not incinerating a solid waste, a position NACWA has long advocated, and therefore are more appropriately covered by Section 112.  NACWA will be working to ensure EPA and its Office of General Counsel have sufficient justification to again conclude that SSIs are subject to Section 112, not 129, of the CAA.

NRDC Petitions EPA for Rulemaking on Nutrient Removal

As NACWA prepares its response to a Natural Resources Defense Council (NRDC) petition on nutrients, the Association is planning meetings with EPA and the states as well as stakeholders like the Federal Water Quality Coalition.  The petition, filed November 27 by NRDC  and other national and regional environmental groups, calls for more stringent requirements for nutrient removal as part of the secondary treatment process, including possible national discharge limits for nitrogen and phosphorus.  Specifically, it requests that EPA publish updated information on the state of secondary treatment technology for publicly owned treatment works (POTWs), namely the extent to which secondary treatment can remove nitrogen and phosphorus.  The petition asserts that nutrient removal of up to 1.0 milligram per liter (mg/L) total phosphorus and 8.0 mg/L total nitrogen averaged yearly can be achieved only through improved conventional biological treatment processes and that current technology allows for nutrient removal during secondary treatment up to limits of 0.3 mg/L total phosphorus and 3 mg/L total nitrogen.  Based on these claims, the petition calls for nitrogen and phosphorus removal requirements for all POTWs.

NACWA’s Legal Alert 07-07 provides a more detailed summary of the petition and requests member comments on the petition, specifically the technological feasibility of the limits outlined in the petition and the cost associated with upgrading POTWs to achieve such limits.  The states, through the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), have also expressed interest in pursuing similar technology-based limits for nutrients through a series of letters sent to EPA in 2007.  NACWA plans to meet with the states and EPA to discuss the petition.

Air Quality and Climate Change

NACWA, Water Sector Organizations Urge EPA to Complete Climate Change Strategy

NACWA and the co-sponsors of the December 2007 Water Sector Forum on Climate Change sent Benjamin Grumbles, Assistant Administrator for EPA’s Office of Water, a letter on January 8 urging the agency to move expeditiously to release its draft strategy on climate change.  The letter, signed by NACWA, the Water Environment Federation, the Association of Metropolitan Water Agencies, and the Western Coalition of Arid States, highlighted the importance of collaboration in the climate change arena and the groups offered to work more closely with EPA as it finalizes its strategy.  To date, EPA has provided very little insight into the contents of its strategy and has only once, early in the process, solicited any input from the water sector.  NACWA had anticipated release of the draft before the end of 2007 and will continue to work for its prompt release.

Conferences and Meetings

NACWA, Municipal Groups Meet with EPA on Top Clean Water Issues

NACWA and other key municipal groups met December 13 with EPA officials, including Jim Hanlon, Director of EPA’s Office of Wastewater Management and Linda Boornazian, Director of the Agency’s Water Permits Division, to discuss the status of a variety of priority clean water issues.  EPA noted that the Agency is continuing deliberations with the White House Office of Management & Budget (OMB) about the peak flows policy and hopes to have it finalized in the next 45-60 days.  Significant work, however, remains to be done to reach agreement on the policy and NACWA believes this timetable will likely not be met.  EPA expressed significant interest in NACWA’s recently released Strategic Watershed Task Force report, Recommendations for a Viable and Vital 21st Century Water Policy.  Boornazian indicated EPA’s interest in working with NACWA and other municipal groups to encourage the Office of Enforcement and Compliance Assurance (OECA) to incorporate watershed-based thinking into its enforcement actions.  EPA noted concerns similar to NACWA’s with language in the recently proposed legislation on sewer overflow monitoring and notification, specifically regarding the logistics of monitoring thousands of manholes and miles of pipe and indicated that they are actively reviewing the NRDC petition on nutrient limits (see related story below) to determine whether the arguments are technically sound.  Also participating in the meeting were the U.S. Conference of Mayors, the National League of Cities, and the Water Environment Federation, among others.

NACWA’s Winter Conference to Focus on Keys to Effective Utility Management

NACWA’s 2008 Winter Conference, Creating Tomorrow’s Utility Today…Keys to Management Success, February 5-8, 2008, at the Pointe Hilton Tapatio Cliffs in Phoenix, Arizona will focus on the management elements essential to running a clean water utility.  Strong leadership, strategic business planning, a healthy and productive workforce, measurement of management success, and a continual management framework are all critical to successfully managing any organization.  These keys to management effectiveness, which factor prominently in the recently released attributes of effective utility management, will be the focus of NACWA’s 2008 Winter Conference.

The conference agenda, online registration, and hotel information are available on NACWA’s conference website.  Don’t wait to make your reservations at the Pointe Hilton Tapatio Cliffs in Phoenix.  The reservation deadline of January 14, 2008 is just days away!  Call 602/866.7500 to guarantee the special conference rate of $209 single/double, and mention that you are a participant in NACWA’s Winter Conference.

Emerging Contaminants

NACWA Submits Comments Supporting Safer Detergent Stewardship Initiative Request

NACWA submitted comments on December 13 to EPA’s Office of Pollution Prevention and Toxics in support of the Information Collection Request  for the Agency’s Safer Detergent Stewardship Initiative (SDSI).  The SDSI is scheduled to be launched early this year to encourage the development and use of detergents that do not contain nonylphenol ethoxylates (NPEs), which have been shown to have toxic effects on aquatic life.  As stated in the comment letter, “NACWA’s members support efforts to reduce pollution at its source, preventing the discharge of pollutants into the wastewater system… Programs like the Safer Detergent Stewardship Initiative that seek to decrease the amount of potentially harmful chemicals from entering the sewer system and encourage businesses and other entities to transition to alternative ingredients and products are critical to addressing the environmental impacts from the diverse range of substances in commercial and consumer products.”  NACWA and its Emerging Contaminants Workgroup have been following the issue of NPEs in detergents, submitting comments last year supporting source controls when the Sierra Club petitioned EPA to better regulate NPEs under the Toxic Substances Control Act (TSCA).  The Association will keep the membership informed of future developments.

EPA Prepares Initial Testing Process for Endocrine Disruptors

NACWA has been closely following EPA’s efforts to implement its Endocrine Disruptor Screening program since its inception in 1996.  Over the last 11 years, EPA and various stakeholders have debated the analytical methods, the testing methodology, and the range of chemicals — among the tens of thousands of candidates — that should be tested first.  EPA announced at the December 17 public meeting in Arlington, Va., that it will issue orders within months under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA) to begin the testing.  Based on the potential for exposure and the high volume in which they are produced, 73 active ingredients and nine inert ingredients for pesticides are currently on EPA’s list for initial testing.

EPA will issue orders to manufacturers, importers of pesticides, and pesticide registrants to conduct the necessary analyses of their products and to submit the data to EPA.  Testing, which will be entirely paid for and conducted by the pesticide industry, will likely begin next fall.  This is only the beginning of the screening process and NACWA expects the list of chemicals to grow into the thousands.  EPA’s Office of Water has not been directly involved with the screening program, but the information obtained from the testing will certainly factor into the Water Office’s future work on endocrine disruptors in wastewater effluent.  NACWA will continue to follow the screening program to monitor how its results could impact clean water agencies.

Facility and Collection Systems

NACWA and EPA Discuss Green Infrastructure Strategy Document

NACWA attended a meeting on December 12 with Benjamin Grumbles, EPA assistant administrator for water, and other senior EPA staff to discuss final changes to EPA’s Green Infrastructure Strategy document.  Other partners in the green infrastructure initiative, including the Natural Resources Defense Council (NRDC), the Low Impact Development (LID) Center, and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), also attended the meeting.  NACWA and these other organizations have been working closely with EPA to develop the strategy, which is expected to be released soon.  The strategy will outline EPA’s approach for increasing awareness of green infrastructure technology and encourage the use of green infrastructure to address water quality challenges.  It will also describe research and funding initiatives related to green infrastructure that are currently underway or planned, as well as ongoing efforts for municipalities to receive “credit” in permits and enforcement actions for the use of green infrastructure.  NACWA looks forward to the release of the strategy document and will make a copy available to members upon its release.

EPA Releases Report on Stormwater and Low Impact Development Practices

As part of its efforts to promote green infrastructure, EPA’s Office of Water has released a report, Reducing Stormwater Costs through Low Impact Development (LID) Strategies and Practices. The report contains 17 development case studies in the U.S. and Canada that used LID practices, which help reduce stormwater runoff by allowing infiltration, evapotranspiration, and reuse of rainwater.  The report analyzes the costs associated with LID, concluding that in most cases, LID projects resulted in 15 to 80 percent cost savings associated with stormwater control because of the reduced costs for site grading and preparation, stormwater infrastructure, paving, and landscaping.  The analysis did not provide estimates on the additional economic benefits of LID, such as increased property values and improved quality of life, but does discuss these benefits.

Pretreatment and Pollution Prevention

NACWA Comments Recommend No Effluent Guidelines for Health Services Industry

NACWA submitted comments December 31 on EPA’s Preliminary 2008 Effluent Guidelines Program Plan detailing concerns about the Agency’s proposed new Health Services Industry category.  The plan provides information about EPA’s 2007 annual review of effluent limitation guidelines (ELGs) and pretreatment standards for both existing and non-regulated categories, as well as its preliminary plan for 2008.  EPA is conducting a detailed study of the Health Services Industry — which includes hospitals, dental clinics, long-term care facilities, veterinary clinics, and medical laboratories and diagnostic centers — focusing on mercury discharges from dental facilities and disposal of unused pharmaceuticals from all facilities in the sector.  The comments stated that although “NACWA supports national efforts to address mercury and pharmaceutical discharges, establishing effluent guidelines for the Health Services Industry is not a practical way to address the large number of dischargers in the category and would not result in substantial water quality improvements.”

The comments describe the NACWA Mercury Workgroup project to study sources of mercury and the effectiveness of dental amalgam separators.  The results of its most recent study showed “that many factors, not just amalgam separator installation, influence mercury concentrations at POTWs [publicly owned treatment works].”  These other factors include legacy contributions of mercury from historic discharges and mercury excreted from humans with amalgam fillings, and “it is often the uncontrollable sources of mercury that prevent POTWs from meeting stringent effluent limits.”  In addition, air deposition is a much larger contributor of mercury to the water environment than POTWs, and NACWA’s comments recommend a broad, innovative strategy focusing on source controls rather than specific effluent guidelines for dental amalgam.

For unused pharmaceuticals, NACWA recommends that EPA work with other federal agencies to develop “clear consistent guidelines or best management practices for disposal of unused pharmaceuticals.”  The White House Office of National Drug Control Policy (ONDCP) issued federal guidelines in February 2007 that generally recommend disposing of pharmaceuticals in the trash, but also advise that certain drugs still be flushed down the toilet.  NACWA is concerned that these guidelines “send a mixed message to health care facilities, hospice programs, and consumers, and that flushing will still be considered the easiest method of disposal for all drugs.”  NACWA also recommends that EPA help remove the barriers to implementing drug take-back programs, which have been successfully conducted in many communities but face many challenges due to Drug Enforcement Agency regulations for controlled substances.

NACWA members contributed to these comments and also submitted their own comments to EPA.  NACWA will keep members informed about the developments in the Effluent Guidelines Program and the results of EPA’s study on the Health Services Industry.

Security and Emergency Preparedness

NACWA Releases New Security Publication for Water Sector Utilities

NACWA released a new publication, Protecting the Water Sector From Security Threats: The Emerging Legal and Policy Frameworks, which is designed to help clean water utilities and other members of the water sector adapt to the ever-changing security environment.  Based on NACWA’s successful 2002 Legal Issues in a Time of Crisis, the new publication, produced in cooperation with the American Public Works Association (APWA), the Association of Metropolitan Water Agencies (AMWA), and the Water Environment Federation (WEF), has been significantly updated to reflect the many changes to the legal landscape involving security issues over the past five years.  The publication has been expanded to include a discussion of security challenges facing drinking water utilities and public works agencies in addition to valuable information on public wastewater treatment facilities.  Topics covered include an examination of the current federal legislative framework for protecting water sector infrastructure, a discussion of the potential for civil liability that water sector utilities might face in the event of a terrorist attack or security breach, and an overview of the legal obligations of employers to their employees in the event of a terrorist attack on a facility.  Additionally, a “Quick Reference Checklist” facilitates easy identification of some of the major legal and security considerations for clean water agencies, with references to detailed information about specific issues in the publication.

Acomplimentary copy of the publication has been mailed to all NACWA members, and electronic copies can also be downloaded at no cost to members from NACWA’s Bookstore.

Utility Management

NACWA Needs Your Index Data, Submittal Deadline Extended!

NACWA can still include your agency’s data in the 2007 NACWA Index survey if you submit your survey form by January 18.  To ensure the survey results are as meaningful as in past years, NACWA needs as much data as possible.  If you are not sure whether your agency already has submitted its data, or if you would like us to resend your survey form, please send an email to Chris Hornback, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .   More details on the survey and information on submitting your responses via CleanWater Central are available in Member Update 07-19. 

[1]  A petition for reconsideration of this final decision reopened the debate on whether SSIs should be included in the OSWI rule.  A January 22, 2007 Federal Register notice reaffirmed EPA’s decision that SSIs were not OSWIs and should, therefore, be regulated under Section 112.