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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to October 8, 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 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

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 last month 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 September 8 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 met September 9 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 also met with the head of that office on September 8 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 the recent proposal of the rule, there is little time for meaningful public comment and for EPA to finalize the rule and return it to OMB for a final check.  EPA is only allowing 30 days for public comment — which runs from the Federal Register publication date — as it attempts to meet a January 16, 2011 deadline for finalizing the standards. 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.

EPA Inspector General Releases Report Critical of Inconsistent State Enforcement Programs

As senior EPA officials continue to speak out about their efforts to increase enforcement — and criminal enforcement in particular —  for environmental violations, EPA’s Office of Inspector General (OIG) released a final report Sept. 14 criticizing the Agency for inconsistent and outdated Memoranda of Agreement (MOA) between EPA and state enforcement agencies under the National Pollutant Discharge Elimination System (NPDES) program, which often leads to uneven enforcement actions across the country involving Clean Water Act (CWA) requirements.  This finding echoes the position taken by NACWA in a number of recent documents, including the Association’s CWA Enforcement White Paper , which pointed out that the current EPA enforcement program suffers from a lack of uniformity and consistency across the country, unfairly subjecting clean water utilities to different requirements in different states and regions.  The OIG report notes that MOAs between EPA and states are critical because they represent “a common denominator for state-authorized programs and should represent a common baseline.”  However, the report found that inconsistent and outdated MOAs between states and EPA have undermined the Agency’s ability to maintain uniform programs across the states and ensure consistent oversight of state programs.

In order to address these concerns, the OIG report recommends that EPA “ensure that all NPDES MOAs contain essential elements for a nationally consistent enforcement program.”  As part of this effort, EPA is encouraged to create a national template or model MOA; direct the EPA regions to revise outdated or inconsistent MOAs to meet the national template; establish a process for periodic review of MOAs to ensure consistency; and develop a national clearinghouse of all MOAs so that states and the public have access to the documents.  The report further indicates that EPA has expressed a willingness to pursue many of these recommendations to create a more consistent and predictable enforcement environment for regulated entities.  EPA has 90 days to respond to the report and provide a corrective action plan for implementing the agreed-upon recommendations, including milestone dates by which the recommendations will be completed.  NACWA will monitor EPA’s response to the report and inform the membership of any developments.

Air Quality

NACWA Comments on Proposed NESHAP for Boilers

NACWA submitted comments August 23 on the proposed National Emission Standards for Hazardous Air Pollutants (NESHAP) for industrial, commercial, and institutional boilers at area sources.  The proposed rule was published in a June 4 Federal Register notice and is described in Advocacy Alert 10-15.  Emissions standards are proposed for large boilers, with a heat input capacity greater than 10 million British thermal units per hour (MMBtu/hr), while for small boilers, only work standards are proposed, consisting mainly of tune-ups every two years.  In the comments, NACWA requested clarification on the definition of gaseous fuel boilers, which are exempt from the proposed emissions standards, and recommended that the definition “. . . account for boilers that usually operate on biogas, but must also use other fuels on certain occasions.”  This would help utilities that have boilers that typically operate on biogas but must occasionally use fuel oil, such as for startups or temporary decreases in the supply of biogas.

For small boilers, NACWA agreed with EPA’s proposal of work standards rather than emissions standards, and asked for clarifications on several requirements related to the biennial tune-ups.  The proposed rule requires measurements of carbon monoxide (CO) before and after adjustments are made with the tune-up, and that CO be measured and reported annually.  However, these requirements are inconsistent with EPA’s reasoning for establishing work standards rather than emissions limits for small boilers.  In the proposed rule, EPA states that the standard methods for measuring emissions are not applicable for sampling stacks with diameters less than 12 inches, which are generally found on small boilers.  In addition, many of these small boilers would require expensive modification to install sampling ports and a platform to access the stack.  As NACWA stated in its comments, “since it is not feasible to require emissions limits due to the technological limitations of monitoring and testing, as well as the costs of necessary modifications to perform the tests, it is also not feasible to require emissions testing as part of the biennial tune-up.”

In addition, the comments asked that the NESHAP include “. . .an emergency exemption for wastewater treatment facilities to allow for temporary, emergency exceedances of emissions limits without violation.”  NACWA will follow developments in the proposed rule and keep members informed of requirements that may affect boilers at wastewater utilities.

NACWA Comments on Proposed Regulations for Internal Combustion Engines

NACWA submitted comments September 8 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.

Climate Change

NDWAC’s Key Climate Working Group Finalizes Recommendations

At a September 23-24 meeting, the National Drinking Water Advisory Council’s (NDWAC) Climate Ready Water Utilities Working Group finalized its recommendations related to the development of an effective program to enable water and wastewater utilities to prepare long-term plans that account for climate change impacts.  Antonio Quintanilla, Assistant Director of Maintenance and Operations for the Metropolitan Water Reclamation District of Greater Chicago and vice chair of NACWA’s Climate Change Committee, was the NACWA-nominated member on the working group.  Representatives from four other NACWA member agencies were also part of the 21-member group.  The group met five times over the past 10 months to evaluate the concept of “climate ready water utilities.”  At the request of the NDWAC, the group focused on three specific topics:  the behaviors that will characterize a “climate ready utility;” climate change-related tools, training, and products needed to enable climate ready utility behaviors; and ways to encourage broad adoption through recognition or incentives incorporated into existing EPA Office of Water recognition and awards programs or new recognition programs.  After receiving the final report, the NDWAC will decide how to present this information to EPA.  NACWA will inform members about any EPA actions resulting from the work of this group.

NACWA Participates in Workshop to Define Climate Change Research Needs

NACWA and representatives from several of its member agencies participated in a workshop August 31 – September 1 that focused on the needs of the drinking water and wastewater treatment community for research related to climate change and water.  The two-day workshop, A View of the Future for Research on Climate Change Impacts on Water, was sponsored by the Water Environment Research Foundation (WERF), the Water Research Foundation, EPA, the National Oceanic and Atmospheric Administration (NOAA), and NASA.  Following discussions about current research, workshop participants developed descriptions for potential projects in the areas of flooding and wet weather, water quality, coastal zone issues, water supply and drought, and the water-energy nexus.

The research projects focused not only on scientific and technical information that is needed, but also policies and regulatory actions that could assist water utilities with adaptation to climate change.  NACWA and its members emphasized the technical research and regulatory needs related to a holistic watershed approach and the use of alternative methods for improving water quality, such as green infrastructure, which can help utilities adapt to climate change and reduce greenhouse gas emissions.  The goal of the organizations and agencies that sponsored the workshop is to use the project descriptions developed by the participants in future decisions about research funding.

After the workshop, NACWA also participated in a listening session on the National Climate Assessment hosted by the White House Office of Science and Technology Policy and NOAA.  During the listening session, the federal agencies sought ideas on how to engage drinking water and wastewater treatment utilities in the Assessment and what types of information the water sector could provide for their consideration going forward.   The next National Climate Assessment report is due to Congress in June 2012.  The report is expected to have a new focus on how to use climate change research to support decisions related to adaptation and mitigation.

NPDES Permitting

NACWA Provides Input to EPA on Electronic Reporting Rule

NACWA weighed in September 22 on EPA’s plans to propose a rule requiring more electronic reporting in the National Pollutant Discharge Elimination System (NPDES) permitting program.  EPA staff briefed state and local representatives September 15 on the changes the Agency is considering to improve the efficiency of permit-related reporting and increase access to the information.  EPA staff was scheduled to meet with the Agency’s Office of Water management at the end of September to identify what new requirements the proposal, which is expected to be issued in May 2011, will include.  NACWA’s comments outlined several preliminary thoughts for EPA to consider as it determines how to proceed.

NACWA’s letter supported EPA’s efforts to improve environmental management decisions by making information more accessible to regulators, but emphasized that data quality should remain a top priority.  Past efforts to make environmental compliance information more accessible, most notably through the Agency’s online ECHO database, have been plagued with errors.  Data quality is essential for information that will ultimately be viewed by the public, and NACWA’s letter underscored that any proposal to increase electronic reporting and data availability must also include a robust plan for assuring the quality of that data.  This is particularly important when presenting information on NPDES permit violations given the potential for third party lawsuits under the Clean Water Act’s citizen suit provision.

There was no official comment period for this initial input-gathering step, but EPA did hold a series of listening sessions to seek comments from stakeholders and the public.  EPA also launched an NPDES reporting rule website that provides a discussion forum for stakeholders to weigh in throughout the rulemaking process.  NACWA will follow the Agency’s development efforts and seek comments from its members when the proposal is released next year.  EPA is expecting to publish a final rule in September 2012.

Nutrients

NACWA Nutrient Summit Sheds Light on Potential National Path Forward

NACWA members gathered in Chicago September 16 and 17 for the Association’s Nutrient Summit to hear from key policymakers and stakeholders and engage in a dialogue aimed at making recommendations to EPA on a viable national path forward on nutrient issues. Key federal, state, municipal, legal and NGO representatives provided presentations that framed national issues and set the stage for a productive facilitated session. Ephraim King, Director of EPA’s Office of Science and Technology, made it clear that the Agency viewed wastewater treatment utilities to be among the significant contributors to the nutrient problem and that the development of numeric nutrient criteria was the appropriate path forward to ensure accountability.  He also added, however, that NACWA and its members are also key to finding the necessary solutions and that the Summit served as an important first step in making further progress.  The facilitated session took place over two days and focused on what NACWA should offer proactively to EPA on a more rational approach to addressing nutrient-related water quality impacts.  Participants highlighted the need to establish causal linkages before imposing nutrient controls and the need to address nutrients on a site-specific basis with sound modeling being one of the key ways to accomplish this.  Given the current challenges with establishing linkages between nutrients and in-stream impacts, there was also significant discussion of a technology-based “ceiling” where local water quality conditions indicate that point source nutrient reductions are needed.  The need for states to set rigorous requirements for nonpoint sources was also at the front-and-center of the discussion.

The facilitated session was very productive and will help provide the foundation for NACWA’s advocacy on this issue going forward.   One of the key outcomes of the Summit is a set of building blocks essential to controlling nutrients.  Over the coming weeks, NACWA will be working to finalize the building blocks drafted during the Summit and to develop an issue paper outlining additional details.  NACWA will forward these to the full membership via Advocacy Alert.  NACWA is also planning an aggressive set of next steps to build on the momentum generated by the Summit, beginning with meetings with key stakeholders like EPA and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), and potentially convening a broader dialogue meeting will all of the key interests, including the environmental NGO and nonpoint source communities.

NACWA Renews Objections to Proposed Nutrient Criteria for Florida

In response to a request for additional information and input, NACWA submitted comments September 2 on possible revisions to EPA’s proposed numeric nutrient criteria for Florida’s flowing waters.  The notice, released only two months before EPA’s deadline to finalize the criteria pursuant to the terms of a consent agreement, proposes to use a benchmark distribution approach for establishing criteria values for certain waters; realigns some of the stream regions in the state; and recommends using a different environmental model for evaluating downstream impacts.  NACWA’s comments raised concerns that an aggressive schedule, rather than sound science, was driving the development of the criteria and recommended that EPA seek relief from the October consent decree deadline for finalizing the first round of criteria.

The benchmark distribution approach EPA is proposing is a ‘modified reference condition approach’ and relies on statistics rather than a cause-and-effect relationship to determine a protective level of nutrients.  NACWA has been a vocal critic of the reference condition approach to nutrient criteria development since the late 1990s and reiterated the concerns it raised in its April 2010 comments on EPA’s original proposal for Florida which also relied on the reference condition approach.  NACWA and other stakeholders, including the Florida Department of Environmental Protection, have suggested that bioassessments be done before applying reference condition-based criteria to ensure that the statistics are relevant to the waterbody in question.  NACWA believes that including such a biological confirmatory step in the Florida criteria would be consistent with other state approaches, would help prevent unnecessary expenditures where biological conditions are not impacted, and ensure that controls are put in place when there is an impact.

NACWA also reiterated its broader concern over how EPA’s new criteria will be implemented and how they will integrate with existing Clean Water Act programs.  First and foremost, NACWA remains concerned that EPA has not adequately addressed the impact of its new criteria on current, EPA-approved TMDLs in Florida.  NACWA believes that clarifying language is needed to indicate that the new criteria will not be applied to waters governed by current TMDLs until the state finds that the TMDL needs to be updated.  NACWA anticipates a legal challenge following the release of EPA’s final criteria for Florida’s flowing waters in mid-October, and will evaluate what if any role the Association should play at that time.

Pretreatment

EPA to Develop Pretreatment Standards for Dental Clinics

EPA announced September 27 that it plans to develop a national rulemaking to address mercury discharges from dental clinics.  EPA had previously indicated that it would rely on voluntary approaches, including a Memorandum of Understanding among EPA, the American Dental Association, and NACWA, to encourage dental clinics to do more to control the discharge of mercury from their offices.  Citing the declining use of mercury amalgam fillings in modern dentistry practices and the success of existing state and voluntary programs, EPA decided in its 2008 Effluent Guidelines Program Plan to not develop categorical pretreatment standards for dentists.  Since that time, however, the Agency has been criticized by state organizations, including the Environmental Council of States, and the House Committee on Oversight and Government Reform’s Domestic Policy Subcommittee for relying on a purely voluntary approach.  EPA has indicated that the new requirements, which NACWA believes would likely take the form of mandatory best management practices including the installation of amalgam separators, would be developed using EPA’s authority under the pretreatment program.  EPA is expecting to develop a proposal by next fall with the goal of finalizing the rule in 2012.  NACWA, through its Pretreatment and Pollution Prevention Committee and Mercury Workgroup, will develop initial comments for EPA to consider as it outlines its options for the proposal.  More information on mercury from dental clinics is available on EPA’s website, although there is currently no additional information on this new rulemaking effort.

EPA Releases Draft Guidance on Managing Unused Pharmaceuticals at Health Care Facilities

In its 2008 Effluent Guidelines Program Plan, EPA announced that it would proceed with a special study of the health services industry, specifically its handling of unused pharmaceutical wastes.  EPA conducted a survey of the industry and based on the information it collected has now released a draft guidance document for managing unused pharmaceuticals at hospitals, medical clinics, doctors’ offices, long-term care facilities and veterinary facilities.  The draft document describes techniques for reducing or avoiding pharmaceutical waste, practices for identifying and managing types of unused pharmaceuticals, and applicable disposal regulations.  EPA is continuing to solicit recommendations from a wide range of stakeholders and is accepting comments on the draft through November 8.  NACWA’s Pretreatment and Pollution Prevention Committee and Emerging Contaminants Workgroup will be reviewing the guidance and developing comments for the Association.  NACWA members are encouraged to send any comments to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Water Quality

NACWA Raises Concerns with EPA Approval of Nanosilver Pesticide Use

NACWA commented September 9 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 is now working to set up a meeting with key EPA staff involved with the registration to follow-up on its letter and inquire whether any changes will be made to the Agency’s planned approval.

NACWA Cautions EPA on Potential Changes to Water Quality Standards Regulations

NACWA commented September 22 on a request for input on several potential changes to EPA’s water quality standards (WQS) regulations.  According to EPA, it initiated the effort in an attempt to clarify and include more specificity on the Agency’s WQS review and approval process and to improve consistency in implementation.  This is not the first time EPA has proposed to make revisions to its WQS regulations.  In July of 1998, the Agency issued an Advanced Notice of Proposed Rulemaking (ANPRM) on the WQS program, seeking comment on a long list of potential changes.  NACWA submitted extensive comments at the time, as did many other stakeholders, but EPA took no further action on the issues identified in the ANPRM.

EPA’s new list consists of six potential revisions and was culled from a longer list of more than 100 potential changes contained in the 1998 ANPRM.  Specifically, EPA is now proposing to make targeted changes to the provisions on anti-degradation, designated uses, triennial reviews, and variances, as well as clarifying what constitutes an “Administrator’s determination” on whether federal water quality standards are required (additional detail on the proposed changes was provided to the membership via Advocacy Alert 10-23).  NACWA’s letter underscored that EPA should revise the WQS regulations only when there is a clear need to modify or clarify existing requirements.  While NACWA agrees with some of the changes EPA is proposing, the Association generally believes that they do not warrant significant revisions to the WQS regulations at this time.  For most of the areas the Agency is targeting, additional guidance to the states, instead of new regulatory provisions, would suffice.  EPA staff briefed Office of Water management at the end of September on the input it has received so far and the Agency is targeting next summer for issuing its proposed WQS rule.  NACWA will continue to get updates on the Agency’s rule development efforts and provide those to the membership as necessary.