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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to November 4, 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 Brings Message on Incineration to Public Hearing, Seeks Meeting with EPA Administrator

NACWA and member agencies from California, Missouri, Ohio, Virginia, and North Carolina came together October 29 in Research Triangle Park, N.C., for a public hearing on the proposed maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs) (see related story).  In its testimony, NACWA reiterated the Association’s long-standing legal arguments that SSIs must be regulated under Section 112 of the Clean Air Act (CAA), not Section 129, which mandates MACT level of control for all sources.  The NACWA member agencies that testified focused on the myriad errors and incorrect assumptions in the proposed standards.  The top issues identified by NACWA and its members were the overestimation of emissions – especially for mercury – from SSIs and the underestimation of the costs associated with switching to landfills or installing additional pollution control devices.

NACWA is also preparing a comprehensive set of legal and technical written comments on the proposal, due November 29, and is drafting a template letter for its incinerator members to use in preparing their own comments.   The Association is planning additional meetings with EPA air office staff in Research Triangle Park and has sent a letter to EPA Administrator Lisa Jackson seeking a meeting with her to discuss this issue.  As the letter states, “Given the cross-cutting nature of the rules governing sewage sludge management, involving multiple EPA offices and at least three different environmental statutes, including the Resource Conservation and Recovery Act, the Clean Air Act and the Clean Water Act, NACWA believes the only way to ensure a viable outcome is through a meeting with you and your staff.”  NACWA will keep members informed of these efforts as they progress.

NACWA is leaving all options open for a potential legal challenge of the final rule.  No legal action can be taken until EPA finalizes the MACT standards, but NACWA has been working over the past year to prepare the Association should the membership and its Board of Directors decide to challenge the final standards.

EPA Publishes Proposed Clean Air Act Standards for Sewage Sludge Incinerators

On October 14 EPA published proposed standards under Section 129 of the CAA for SSIs.  The new standards will require the vast majority of clean water agencies with existing SSIs to install additional pollution control devices at a capital cost of over $200 million dollars and an annual increase in costs of approximately $100 million, according to EPA.  The proposed standards are based on a maximum achievable control technology (MACT) level of performance.  For mercury, however, EPA has gone a step further and has proposed a more stringent control level that goes ‘beyond the MACT Floor’ at an estimated cost of $12 million dollars per ton of mercury removed.  Based on its initial review, NACWA believes that EPA has vastly overestimated the contribution of mercury from SSIs.

In a press release issued in response to the proposal, NACWA noted that the proposed new source performance standards could effectively eliminate the construction of new SSIs, and the standards for existing SSIs could force many communities to abandon incineration as early as 2016.  EPA asserts that some of the costs to upgrade existing units will be avoided since many public wastewater utilities will simply abandon incineration and send their sludge to a landfill instead.  NACWA, however, has uncovered errors in EPA’s analysis that indicate the Agency has understated the true costs utilities will incur to enable them to send their sludge to a landfill and has largely overlooked the negative environmental impacts that could result from abandoning incineration in favor of using landfills.  Comments on the proposed standards are due to EPA on November 29, 2010.

Affordability/Funding

NACWA Member Agency Leaders Meet with EPA Deputy Administrator to Discuss Future Funding, Money Matters Campaign

Key members of NACWA’s Executive Committee and leadership met October 15 with EPA’s Deputy Administrator Bob Perciasepe and other key EPA officials to discuss several important funding and financial issues.  Perciasepe was interested in discussing the appropriate ongoing level of federal funding for the Clean Water State Revolving Fund (CWSRF).  Perciasepe noted that under the Clean Water Act (CWA) the federal government was required to provide funds for the construction of wastewater treatment plants and sought NACWA’s input on what the appropriate federal percentage should be for overall national sewer-related investment.  The discussion was wide-ranging and included the need for a better estimate of national wastewater-specific construction spending and a workable economic matrix to determine the appropriate mix of rate increases, debt burden, and federal contribution.  Perciasepe noted that the Office of Management and Budget (OMB) was seeking an across-the-board cut of 11% to EPA’s budget and said it would be critical to develop a strong recommendation on behalf of SRF funding.  NACWA’s members noted that the EPA-estimated clean water needs were great and growing, that EPA’s share of this investment would only need to expand as local rate increases in urban centers become too large to be sustainable, and that the Agency should urge the White House to support a clean water trust fund to ensure a long-term funding source for the SRF.

Perciasepe also expressed significant interest in NACWA’s Money Matters — Smarter Investment to Advance Clean Water campaign. Perciasepe’s attention was caught by the bipartisan Congressional letter urging EPA to update its affordability approach and NACWA made it clear that if EPA did not act on a revised affordability approach soon, the next Congress would be poised to step into the vacuum in a manner that would likely cause the Agency significant concern.  NACWA invited Perciasepe to the Money Matters Summit and Rally in Washington, D.C., which the organization has begun to organize.  NACWA also met earlier with Assistant Administrator for Water Pete Silva and other key Office of Water staff as part of a broader municipal water sector meeting and provided them with information on the Money Matters campaign.  Further details on this Summit and the Money Matters effort will be made available to the membership via an Advocacy Alert soon as well as on the Money Matters campaign webpage.

EPA Unveils SRF Sustainability Strategy and its FY 2011-2015 Priorities

EPA unveiled two documents last month, its Clean Water and Drinking Water Infrastructure Sustainability Policy ,  which seeks to further link state revolving fund (SRF) project dollars to sustainable community planning, and its Fiscal Year 2011-2015 EPA Strategic Plan described as a “blueprint for accomplishing [Agency] priorities for the next five years.” This Strategic Plan does not differ significantly from the Agency’s previous five-year plan, with clean water listed as the second of the Plan’s five priorities: 1) taking action on climate change and improving air quality; 2) protecting America's waters; 3) cleaning up communities and advancing sustainable development; 4) ensuring the safety of chemicals and preventing pollution; and 5) enforcing environmental laws.

The SRF sustainability policy, while leaving the selection of priority SRF projects entirely to the states, seeks a closer working relationship between EPA, states, and municipalities “to encourage additional practices, including up-front planning, effective utility management, asset management, integrated water resource management, and energy management to build a ‘pipeline’ of sustainable projects eligible to receive federal SRF . . . funding.”  The policy also notes EPA’s intent to develop “guidance for utilities describing how they should enhance system-wide planning processes including consideration of other community sustainability goals, life-cycle cost analyses, and alternatives, such as natural or ‘green’ systems.”  NACWA members were involved in providing input into the development of this policy, especially the inclusion of references to the work the Association did in conjunction with other key groups on effective utility management, and will also ensure its voice is heard in the development of the guidance referenced in the policy.

Conferences and Meetings

NACWA 2011 Winter Conference to Focus on Wet Weather and Collection Systems

NACWA’s 2011 Winter Conference, Understanding the New Paradigm for Wet Weather & Collection System Management, will take place February 1-4, 2011 at the Hyatt Regency Pier Sixty-Six in Ft. Lauderdale, Florida.  Unlike past NACWA Winter Conferences, this meeting will have a technical focus, with management issues featured again at the 2011 Summer Conference in Chicago – a pattern that will continue in future years.

The conference program will explore the increasing focus on wet weather issues for utilities resulting from the potential EPA rulemaking on sanitary sewer overflows (SSOs), collection system management, and blending, as well as the major rule effort already underway for stormwater.  Combined sewer system projects are also experiencing greater scrutiny and broadened expectations.  The conference will explore new approaches, including green infrastructure and low impact development techniques, which are often promoted as cost-effective and environmentally-beneficial alternatives to traditional gray infrastructure.  The agenda will examine difficulties that can arise with implementing these approaches and integrating them into existing regulatory programs.

Engaging satellite communities on collection system issues and dealing with privately-owned systems and laterals present major challenges whether a utility is situated in the Northeast or the arid Southwest, and these challenges will also be a focus of the Winter Conference.  Underlying all major collection system programs is the financial capability of the community and the existing burdens utilities are already facing for repair and replacement of aging infrastructure.  The conference program will build on NACWA’s Money Matters campaign and include discussions about the multi-faceted, cooperative efforts underway to seek relief for clean water agencies.  More information about the Winter Conference, including a draft agenda, will be coming soon to NACWA’s website at www.nacwa.org/meetings.

Law Seminar to Address Key Affordability, Regulatory Issues

NACWA’s 2010 Developments in Clean Water Law Seminar, scheduled for November 17-19 at the Inn at Loretto in Santa Fe, New Mexico, promises an engaging program that will address the most current legal issues facing clean water utilities, including a detailed analysis of emerging affordability and regulatory challenges.   Two different panel presentations will focus on affordability issues.  The discussion will kick off with a panel featuring case studies from a number of NACWA member agencies that have recently completed consent decree negotiations, including lessons learned and advice on making effective affordability-based arguments.  The conversation will then continue with a second panel of NACWA members already under consent decrees but continuing to struggle with affordability issues as they implement their existing decrees.  The speakers on this panel will explore efforts by utilities – and the clean water community as a whole – to gain more legal and regulatory flexibility in prioritizing needed clean water investments.

Regulatory developments impacting wastewater and stormwater utilities will also receive substantial attention during the Seminar, including how emerging new regulations from EPA addressing nutrients, sanitary sewer collection systems, and stormwater could impact NACWA members.   EPA is also considering changes to existing regulations governing stormwater management standards, the incineration of biosolids, and water quality standards, all of which could significantly affect the operations of clean water agencies.  A panel of legal experts will discuss these potential changes and their implications on municipal utilities from both a legal and regulatory perspective.  For more information, including a complete agenda, visit NACWA’s website at www.nacwa.org/meetings.

NACWA Brings Public Utility Message to WEFTEC 2010 in New Orleans

NACWA brought the public clean water agency message to WEFTEC 2010 in New Orleans through its Clean Water Advocacy Center (CWAC) and its Hot Topics Breakfast featuring key EPA officials.  The CWAC featured two Ben Franklin ‘interpreters’ who helped attract attendees to the booth where visitors received Money Matters — Smarter Investment to Advance Clean Water flyers and giveaways with the Money Matters logo prominently displayed.  For more information on the Money Matters campaign visit the NACWA homepage and click on the Money Matters icon.

NACWA’s annual Hot Topics Breakfast on the morning of October 5 drew over 60 NACWA members and other guests and featured comments from EPA’s James Hanlon, director of the Office of Wastewater Management; Benita Best-Wong, acting deputy director of the Office of Wetlands, Oceans, and Watersheds; and Jeff Lape, deputy director of the Office of Science and Technology.  During the breakfast, Hanlon noted that EPA staff will be briefing Pete Silva, Assistant Administrator for Water and Lisa Jackson, EPA Administrator, on the results of the sanitary sewer overflow (SSO) listening sessions and public comment period held earlier this year.  The briefing, which is expected to occur before the end of the year, will lay out recommendations on whether the Agency should proceed with developing a comprehensive SSO policy that addresses peak excess flow blending and collection system management issues.

The Chesapeake Bay and Gulf of Mexico restoration efforts and other nutrient-related issues were also topics of discussion at the NACWA-sponsored breakfast.  EPA is currently developing a first of its kind TMDL for the Chesapeake Bay watershed but is indicating that it is not considering a similar approach at this time for the Gulf and Mississippi River basin – a much larger, more complex watershed.

In other news, Hanlon unveiled the new State Revolving Fund (SRF) sustainability strategy (see related story), and also announced that EPA has updated its National Pollutant Discharge Elimination System (NPDES) Permit Writers’ Manual, which is available on EPA’s website.

Energy

EPA Provides Technical Information on Energy Conservation Measures for Wastewater Utilities

EPA released a new technical document, Evaluation of Energy Conservation Measures for Wastewater Treatment Facilities , to assist municipal utility owners and operators in finding information on cost-effective management and energy conservation measures and technologies for reducing total energy usage at their wastewater treatment facilities.  The document includes studies from nine facilities, including several from NACWA member agencies, which further examine application and cost information for various full-scale, operational energy conservation measures and technologies.  Data from the document was developed from literature sources, as well as from manufacturers and operating facilities contacted as part of this project.

Nutrients

NACWA Meets with EPA to Discuss Path Forward on Nutrients

Key NACWA Executive Committee members and staff met October 15 with top EPA Office of Science and Technology (OST) officials to explore ways NACWA and EPA can work more collaboratively on a path forward to addressing nutrient over-enrichment impacts.  OST Director Ephraim King and Deputy Director Jeff Lape sought the meeting with NACWA following discussions at the Association’s Nutrient Summit on September 16-17.  During the meeting, King noted that he was interested in exploring potential ‘interim steps or measures’ with NACWA that could be taken to show progress on the nutrient issue.   King underscored that in those states where sufficient progress is not being made, EPA may be required to take action from the federal level, as it did in Florida.

He pointed to recent legal activity in several states and the pending petition from the Natural Resources Defense Council (NRDC) as evidence of the continued pressure being placed on EPA to address this issue.  While EPA does not seem inclined at this point to grant the NRDC petition, which would require nutrient removal as an element of secondary treatment, EPA does seem to be focused on the potential benefits of a more targeted technology-based approach for wastewater treatment plants.  King pointed to Kansas and its technology-based approach, which is paired with a program to pursue nonpoint source reductions, as a potential model.  Above all else, EPA is interested in engaging the clean water community to help develop a workable path forward on both the national and state levels.

NACWA emphasized that EPA must also be more open to new and innovative ways to express and implement nutrient water quality criteria if meaningful progress is to be made.  This was an important element of the discussions at the NACWA Nutrient Summit and EPA indicated its willingness to discuss the issue further.  While no formal documents have yet been released summarizing the Nutrient Summit, NACWA noted during the meeting that the discussions would ultimately lead to an issue paper that will serve as the foundation for future conversations with EPA.  NACWA has also met with the leaders of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) to discuss a mutually beneficial approach to the nutrient issue with EPA.

Pretreatment and Pollution Prevention

NACWA Meets with EPA on Unused Pharmaceutical Practices

NACWA met with EPA’s Office of Science & Technology on October 21 to discuss the Agency’s draft Best Management Practices for Unused Pharmaceuticals at Health Care Facilities.  NACWA supported development of the best management practices (BMPs) in its comments on the Preliminary 2010 Effluent Guidelines Program Plan.  In 2006, EPA initiated a detailed study of the health services industry for its Effluent Guidelines Program, focusing on the disposal of unused pharmaceuticals.  After initial data collection from hospitals, long-term care facilities, and other stakeholders, EPA decided to move forward with BMP development rather than further study.  The BMPs describe methods that health care facilities can use to reduce the amount of pharmaceutical waste and the appropriate methods of disposal for various types of drugs.

At the meeting, NACWA recommended that EPA revise the wording of the BMPs to more explicitly state that down-the-drain disposal is not appropriate.  NACWA and EPA also discussed how the BMPs will be communicated to health care facilities and the possible role of publicly owned treatment works (POTWs) in publicizing the BMPs.  The Association will submit written comments by the Agency’s November 8 deadline.  NACWA’s Pretreatment and Pollution Prevention Committee has reviewed the BMPs, and encourages Association members to send any comments to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  POTWs are also encouraged to send their comments independent of the Association and include any experiences they have had working with health care facilities to institute appropriate unused pharmaceutical disposal practices.

Security and Emergency Preparedness

EPA Releases VSAT 5.0 and Water Health & Economic Analysis Tool (WHEAT)

EPA has released an updated version of the Vulnerability Self Assessment Tool (VSAT) that is consistent with other water sector risk assessment methodologies.  Funded by EPA, and developed in 2002 by NACWA in collaboration with PA Consulting Group and SCIENTECH, Inc., VSAT has supported water and wastewater utility vulnerability assessments using a qualitative risk assessment methodology for nearly a decade.  The upgraded tool includes a new user-interface that features an intuitive process with improved navigation and enhanced work tracking features, and the tool’s revised risk assessment approach makes consequence, vulnerability, and probability of occurrence assessments of threats more transparent, an enhanced natural disaster threat assessment process, and a revised risk assessment approach. A new natural disaster assessment process is also included in VSAT 5.0, supported by historical information to enable likelihood determinations for hurricanes, tornadoes, floods, and earthquakes.  VSAT 5.0 is available for download, free of charge, through EPA’s website.

EPA also released a new consequence analysis tool, the Water Health & Economic Analysis Tool (WHEAT), which is also available for download free of charge.  WHEAT is an intuitive desktop software tool that assists drinking water utility owners and operators in quantifying public health impacts, utility financial costs, and regional economic impacts of an accidental or adverse event.  Currently, WHEAT generates consequence results based on two scenarios for drinking water utilities: release of a hazardous gas and loss of operating assets.  There are future plans to develop similar wastewater utility modules, and NACWA member representatives are working with EPA to develop these modules.  The release of VSAT and WHEAT provide drinking water, wastewater, and combined utilities of all sizes with the capability to assess, plan for, and better respond to man-made threats and natural disasters.

Stormwater

EPA Requests Public Input on Stormwater Rulemaking Specific to Chesapeake Bay

EPA announced on October 8 in a Federal Register notice that it is considering the development of a special set of stormwater requirements as part of its national rulemaking efforts for municipal separate storm sewer systems (MS4s) located in the Chesapeake Bay watershed and is soliciting public input on this proposal via written comments and public listening sessions.   This notice marks the next step in EPA’s development process for a new national post-construction stormwater rule and will have a specific impact on those NACWA members within the Chesapeake Bay watershed.  Among the actions under consideration by EPA is further expanding the scope of stormwater discharges regulated in the Chesapeake Bay watershed beyond those that would be regulated as part of the national rulemaking efforts, including requirements to implement the Chesapeake Bay total maximum daily load (TMDL).   The Agency is also looking at creating additional Chesapeake Bay-only MS4 provisions such as controls related to turf management and fertilizer usage, heightened retrofit requirements for existing structural stormwater controls, and Chesapeake Bay watershed-specific performance standards for new development and redevelopment that would differ from the national standards.  Additionally, EPA is reviewing environmental justice considerations as part of its efforts to develop Bay-specific MS4 requirements and is requesting public comment on potential environmental justice impacts.

NACWA will be submitting written comments and will also be participating in the public listening session process.  All written comments must be submitted by December 7, 2010, and a list of the dates and locations of the public listening sessions, which will be held throughout the Chesapeake Bay watershed, is available in the Federal Register notice.  NACWA encourages all of its members located in the Chesapeake Bay region to review the notice and to provide input to EPA through participation in the listening sessions or submission of written comments.  NACWA members are also encouraged to share any thoughts or comments with Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Water Quality

Chesapeake Bay Members Exchange Concerns with EPA’s Proposed TMDL

NACWA held a conference call October 21 with its members that discharge into the Chesapeake Bay watershed to discuss EPA’s draft total maximum daily load (TMDL) for the Bay.  Because this TMDL may serve as a model for the rest of the country, NACWA plans to submit comments that focus on the national implications of the proposal while reflecting the concerns of Association members that will be affected by the TMDL.

During the conference call, members expressed their concerns with the science behind the modeling used to develop the TMDL, which may make it impossible for municipalities to achieve their allocations.  The provisions for “reasonable assurance” that states will meet goals for pollution reduction from nonpoint sources are also a concern, since “reasonable assurance” is not clearly defined and EPA has indicated that it will ratchet down on point sources if the Agency feels this assurance has not been met.  The members are also concerned about the aggressive schedules for implementation; the absence of funding to carry out the program; and the overall regulatory instability of the program – where expensive initial upgrades may prove insufficient if more stringent requirements are imposed later in the process.

Comments on the draft TMDL are due on November 8.  While NACWA’s comments will primarily be based on input from the Association’s Chesapeake Bay Member Agencies directly affected by the TMDL, other member input is invited as well.  NACWA urges members to submit any input to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for inclusion in the Association’s comments.

EPA’s Science Advisory Board to Review Florida Criteria Methodology

On October 29, EPA announced a meeting of its Science Advisory Board (SAB) to review EPA’s technical support document on development of numeric nutrient criteria for Florida's estuarine and coastal waters, and southern canals.  The meeting will be held December 13-14, 2010 at the Washington Plaza Hotel in Washington, D.C.  In its comments on EPA’s proposed numeric nutrient criteria, NACWA urged the Agency to seek review of the methodology it proposed to use to develop downstream protection values in Florida.  That methodology is among the issues the SAB will be reviewing.  The controversial criteria EPA has proposed for Florida’s flowing waters will not be part of the SAB review and are expected to be finalized by the middle of November.  NACWA will participate in the SAB meeting and will be working with its Water Quality Committee to determine what comments it should present to the SAB.

December Meeting on FIFRA, CWA Common Effects Assessment

In a November 1 Federal Register notice , EPA announced a December 1 national stakeholders meeting on the development of common methods for characterizing the effects of pesticides on aquatic life.  EPA’s Office of Pesticide Programs and Office of Water, with support from the Office of Research and Development, are evaluating data requirements and tools for determining pesticide effects on aquatic life under both the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Six regional stakeholders meetings were held in January 2010 to collect public input on this effort, which resulted in three draft white papers addressing the use of various tools to estimate aquatic toxicity data, approaches for deriving community level benchmarks, and procedures for better integrating plant effects data into community level assessments. EPA plans to post these white papers on its website soon.  EPA requests written comments on the white papers and its aquatic life effects assessment by January 15, 2011.  NACWA plans to attend the December 1 meeting and submit written comments, and will be seeking input from its members for its comments.