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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July/August 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to August 19, 2010.  Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Top Stories

NACWA Provides EPA with Comments on Sanitary Sewer System Rule-Making

NACWA submitted comments August 2 in response to the U.S. Environmental Protection Agency’s (EPA) June 1 Federal Register notice requesting public input on potential sanitary sewer collection system regulations, including whether the Agency should consider pursuing a comprehensive national policy to address sanitary sewer overflows (SSOs).  NACWA’s comments applaud EPA for taking an important first step towards addressing sanitary sewer issues holistically and encourage the Agency to pursue such a comprehensive approach to provide clean water utilities with much-needed regulatory predictability and consistency.  The comments outline NACWA’s position on a number of issues that EPA highlighted in the request for public input, including reporting and notification issues; capacity, management, operation, and maintenance (CMOM) requirements; permitting of satellite collection systems; and how to address peak wet weather flows at wastewater treatment plants.

The submission of these comments by NACWA marks the culmination of significant participation by the Association and its members in EPA’s stakeholder input process regarding sanitary sewer collection issues, including NACWA attendance at all of EPA’s Listening Sessions and a public statement at the Listening Session in July in Washington, DC.  NACWA will continue to communicate closely with EPA regarding the Agency’s possible next steps and will keep its members updated on any developments.

NACWA Takes Strong Position in Comments to EPA on Sewage Sludge as Solid Waste

NACWA submitted comments August 3 in response to EPA’s June 4 proposed rule that defines sewage sludge bound for incineration as a non-hazardous solid waste.  While the Agency downplays the impact of the rule, NACWA’s comments highlight that the proposal, if finalized, will have an immediate and significant impact on the ability of many of NACWA’s members to manage the sewage sludge they generate on a daily basis.  With the list of available options for managing biosolids continuing to shrink for many municipalities, NACWA’s letter underscores that EPA’s proposed action will have a devastating impact on sewage sludge incineration – which is used to manage approximately one fifth of the sludge generated annually in the U.S.  Under EPA’s proposed approach, combustion units burning solid wastes would be regulated under the more onerous Section 129 Clean Air Act (CAA) requirements, while those burning ‘legitimate secondary materials’ (i.e., not solid wastes) would be regulated under Section 112 of the CAA.

Beyond incineration, the letter points out that EPA’s proposal will also “eviscerate progress toward a new, viable source of renewable energy for the country,” as any combustion unit burning sewage sludge will be required to meet the more stringent CAA Section 129 requirements.

NACWA plans to meet with EPA in the coming weeks as it reviews the comments.  In addition, NACWA is expecting EPA to release proposed CAA Section 129 standards for SSIs in August and the Association will comment on this proposal as well.

Affordability/Financial Capability

NACWA Provides Input into Mayors’ Clean Water Act Affordability Effort

This week, NACWA and several of its members participated in a conference call hosted by the U.S. Conference of Mayors (USCM) to review several white papers that are the basis for a request from USCM to EPA Administrator Lisa Jackson to clarify the Agency’s approach to Clean Water Act (CWA) affordability.  The papers were organized into four topics related to selecting/prioritizing sewer overflow control projects: 1) financial capability; 2) green infrastructure;      3) environmental benefit; and 4) carbon footprint/climate change.  These papers are being edited in line with input provided by the group and will serve as detailed  background documents for a series of brief, specific action requests that the USCM will provide to Administrator Jackson.  The goal is to have Administrator Jackson agree to the requests and use them as the basis of a letter from her to EPA’s Regional Headquarters clarifying how affordability assessments should be conducted.  The USCM hopes to have this letter written and sent before the end of this year.  NACWA and several of its members were pivotal in crafting the USCM’s initial issue papers with support from the Association’s Wet Weather Advocacy Fund.  NACWA staff and members will be highly involved in the final editing process for the papers and the drafting of the specific requests.  When the documents are finalized, NACWA will make them available to the membership.

On a related note, it is critical to bolster NACWA and the USCM’s efforts on affordability with compelling case studies.  As such, NACWA sent Advocacy Alert 10-17 to its members seeking responses to an online survey requesting information on Clean Water Act affordability challenges.  NACWA will be accepting responses through August and thanks in advance for your input.  It is critical to the successful implementation of the Association’s Money Matters campaign.

Air Quality

Comment Deadlines Extended for Proposed Boiler and Engine Regulations

EPA extended the comment deadlines for two proposed rules on emissions that may affect the boilers and internal combustion engines (ICE) at wastewater treatment facilities.  Comments on the proposed National Emission Standards for Hazardous Air Pollutants (NESHAP) for boilers are now due on August 23.  The proposed rule was published in a June 4 Federal Register notice and is described in Advocacy Alert AA 10-15.  EPA also extended the comment deadline to September 8 for the proposed revisions to the new source performance standards (NSPS) for compression and spark ignition stationary ICE.  The proposed revisions were published in a June 8 Federal Register notice and are summarized in NACWA’s June Regulatory Update.  NACWA’s Air Quality Workgroup has reviewed both proposed rules, and NACWA has drafted comments for both proposals based on input from member agencies.  Please provide any additional information regarding these proposals to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it as soon as possible for inclusion in NACWA’s comments.

Climate Change

EPA Proposes Revisions to GHG Reporting Rule, Seeks Comment on Biogenic Sources

In an August 11 Federal Register notice , EPA proposed revisions to its greenhouse gas (GHG) reporting rule issued in October 2009.  NACWA is still reviewing the proposed revisions, but they may impact those utilities that are currently required to calculate their GHG emissions to determine if they exceed EPA’s reporting threshold.  The first reports under EPA’s reporting rule are due in March 2011.   NACWA Regulatory Alert 09-05 provides more detail on the October 2009 reporting rule and its applicability.  NACWA is also working to develop a more in-depth Advocacy Alert to provide members guidance on complying with the reporting rule and will update that Alert with the relevant information from the August 11 notice regarding potential revisions to the reporting requirements before sending it to the membership.
In a separate but related effort, EPA issued in a July 15 Federal Register notice seeking comments on how to address emissions from biogenic sources (generated via the combustion or decomposition of biologically-based materials).  Whether and how to account for GHG emissions from bioenergy/biogenic sources has been subject to much debate.  The July 15 notice indicates that EPA has not yet made a final decision on whether there is a basis for treating biomass carbon dioxide emissions differently from fossil fuel carbon dioxide emissions.  The Agency plans to use the input from the notice to help formulate the Agency’s position.

Wastewater treatment has been squarely in the middle of this ongoing dialogue on biogenic sources of GHGs and NACWA believes the Association should provide comments on notice.  EPA is looking for technical comments and data related to the accounting of GHG emissions from bioenergy and other biogenic sources with respect to its Clean Air Act Prevention of Significant Deterioration and Title V programs, as well as more general comments on how these emissions should be accounted for.

SRF/Funding

NACWA Weighs in with EPA on Future of SRF Program, Federal Funding

NACWA sent a letter July 7 to EPA’s Deputy Administrator Bob Perciasepe responding to a request he made to the Association to provide input on the future of the Clean Water State Revolving Fund (CWSRF) program and the role of the federal government in relation to clean water funding and financing more broadly.   The letter states that, despite federal deficits, now is not the time to consider reducing or zeroing out funding for the CWSRF program.  Rather, the Administration should use this opportunity to re-examine alternative and innovative funding mechanisms and re-imagine how to make the most of the CWSRF to ensure every dollar is used as beneficially as possible.  The letter argues that, given the focus on the federal deficit, now is the time for the Administration to weigh in on behalf of a clean water trust fund – which would provide funding through deficit-neutral revenue sources.  The letter adds that “while more money is a vital part of the solution, so too is ensuring the equitable distribution of any federal funding that becomes available.  This means any new funding that becomes available should, on an equitable basis:

1. Help urban and rural systems alike;
2. Promote green and gray projects based on site-specific priorities;
3. Account for a new, more flexible approach to affordability and to determining financial capability constraints;
4. Incentivize new technologies and market-based approaches such as trading while also accounting for the impacts of climate change;
5. Advance continuous asset management improvement;
6. Take a watershed approach and focus on advancing water quality goals for the Nation’s waterways with a focus on our great water bodies.
   

With the tightening federal budget in mind, the letter also recommends that EPA embark on a serious process to rethink its approach on Clean Water Act affordability assessment to ensure that the limited federal dollars that are made available are targeted to projects that maximize water quality benefits.  Deputy Administrator Perciasepe’s office has contacted NACWA and a meeting is being schedule for October to discuss these issues further.

Water Quality

EPA Releases WET TST Guidance Despite Concerns Raised by NACWA, Stakeholders

EPA has now released a final version of its test of significant toxicity (TST) guidance manual .  NACWA expressed concerns in a January 11, 2010 letter about the procedure for evaluating whole effluent toxicity (WET) test results.  While NACWA continues to have concerns with the entire suite of WET test methods and endpoints, the Association’s primary focus remains on the use of chronic, sub-lethal endpoints, where permit compliance or reasonable potential may be more a function of the method itself, than of effluent quality.  The procedures for evaluating WET test results (i.e., hypothesis testing and point estimates) can moderate some of the acknowledged uncertainties in the methods and EPA had hoped the TST approach would help address some of the ongoing concerns with the test procedure.

As outlined in NACWA’s January letter, EPA’s TST approach leaves many questions unanswered.  Chief among these unresolved issues is why EPA continues to rely on hypothesis testing, while most states, dischargers and even parts of EPA have recognized that point estimates (EC/IC25 calculations) provide a superior approach for evaluating WET test results.  NACWA believes that EPA’s resources would be better utilized improving point estimate approaches given the Agency’s stated preference for them over hypothesis testing, rather than continued work on the TST approach.  The TST approach, while controlling the rate of false negatives in WET tests, results in an unacceptably high false positive rate.  Thus, more non-toxic samples would be mistakenly labeled as toxic than under the current procedures — a major issue for permitted dischargers.

NACWA is still reviewing the final TST document to determine what if any changes were made, but in at least one state, the TST approach is already being looked to for regulatory purposes. California’s State Water Resources Control Board has recently proposed a WET policy that would be based on the TST approach.  NACWA is tracking these developments in California as well as concerns in Texas over implementation of sub-lethal endpoints in permits.

EPA Updates NACWA on Implementation of BEACH Act Litigation Settlement

NACWA received a status report July 14 from EPA regarding implementation of the settlement agreement in the Natural Resources Defense Council v. EPA (BEACH Act), outlining key actions taken by the Agency over the past six months to meet the terms of the agreement.  NACWA played a major role in 2008 to help negotiate the settlement. The update consisted of a consent decree status report and a settlement agreement status report discussing recent EPA efforts under the settlement, as well as planned actions for the rest of 2010.  The reports indicate that during the first half of 2010, EPA has continued work on a number of epidemiological studies at marine and freshwater beaches, explored the creation of new test methods, and engaged in additional scientific research related to recreational water quality criteria.  EPA is also planning a web seminar for the second half of 2010 to provide interested stakeholders with an update on the Agency’s research activities.  They have also begun preparations for an additional stakeholders meeting in 2011.  EPA will also hold an Experts Scientific Workshop in 2011 to thoroughly review the results of the Agency’s BEACH Act studies and determine what additional science and research may be needed for development of new, scientifically sound recreational water quality criteria.  NACWA plans to participate in all future stakeholder meetings.  Under the terms of the settlement agreement, EPA is to complete all research and develop new recreational water quality criteria by the end of 2012.  More information on the litigation and NACWA’s role can be found on the Association’s Litigation Tracking web page.  Another status update from EPA on implementation of the settlement is expected in January 2011.

EPA Holds Public Meeting on NPDES Electronic Reporting Rule

On July 13 NACWA participated in a public meeting on a new rule from EPA requiring National Pollutant Discharge Elimination System (NPDES) permittees to submit their discharge monitoring reports, and potentially other Clean Water Act-related information, electronically.  EPA indicated that such electronic reporting would reduce the cost of processing paper forms, improve the quality and accuracy of the data, and increase accessibility and transparency of this data to the public.  EPA launched an NPDES reporting rule website this week, which includes a discussion forum to allow stakeholders to comment on the rulemaking.  NACWA will follow the Agency’s development efforts and seek comments from its members at the appropriate time.  EPA is expecting to propose the rule in May 2011 and publish a final rule in September 2012.

EPA Announces Plan to Revise Water Quality Standards Regulation, Including Use Attainability

EPA announced in a July 30 Federal Register notice its plans to initiate a rulemaking to make a set of targeted changes to the Agency’s water quality standards (WQS) regulation.  The Agency began work identifying issues for the rulemaking last year, announcing that it was planning to propose “clarifications” to the regulation in order to improve its effectiveness in helping restore and maintain the nation’s waters.  In the July 30 notice, EPA outlines several proposed changes to its rules on antidegradation, designated uses, variances and other elements of the water quality standards regulation.  Advocacy Alert 10-23 has more details on EPA’s proposed changes.  EPA will hold two public listening sessions to seek input.  Both sessions will be audio teleconferences and will take place on Tuesday, August 24 and Thursday, August 26, 2010 from 1:00 - 2:30 pm Eastern.  As described in the notice, the sessions will provide a review of EPA’s current water quality standards regulation and a summary of the clarifications that EPA is considering.  As time permits, EPA will allow questions and brief oral comments during the listening sessions.  NACWA will participate in the listening sessions and encourages members interested in participating to register in advance on EPA’s website.  NACWA is reviewing the notice and is soliciting input from the membership on EPA’s proposed changes via Advocacy Alert 10-23.

EPA Seeks Additional Comments on Florida Nutrient Criteria

EPA announced August 3 that it is seeking additional input on its proposed numeric nutrient criteria for Florida.  The Federal Register notice seeks comment on:

• Revised stream region boundaries based on additional information about watershed delineations and phosphorus-rich geological formations;
• Basing the total nitrogen (TN) and total phosphorus (TP) criteria on a combination of the 75th and 90th percentile values, keeping the 75th percentile for those sites with healthy biological condition indices – use of the 90th percentile would mean that some of the TN and TP values would be somewhat less stringent than originally proposed; and
• Using the BATHTUB model in place of the Vollenweider equation for deriving downstream protection values for lakes.
  
  

NACWA raised concerns on some of these issues in its comments on EPA’s proposed criteria for Florida and will be reviewing this new notice to if further comment is needed.

EPA Proposes Changes, Additions to Analytical Methods Including Controversial PCB Method

EPA released a pre-publication version of its Methods Update Rule August 10, with changes to a suite of current analytical methods in 40 CFR Part 136 and proposed inclusion of new EPA methods and several methods published by consensus standard bodies.  While NACWA is still reviewing the rule to evaluate all the proposed changes, the rule does propose to include in Part 136 Method 1668C, a highly controversial method for evaluating PCBs.  The method is orders of magnitude more sensitive than the current PCB method in 40 CFR Part 136 and would result in many more permittees finding PCBs in their discharges.  NACWA members familiar with the method have serious concerns about lab contamination issues, use of the method for regulatory compliance purposes, and the ability of the method to perform in industrial discharge matrices under the pretreatment program.  Comments on the proposal will be due 60 days from the date of publication in the Federal Register.  NACWA will continue to review the proposed changes and begin work on comments.

NACWA Submits Comments on “Sufficiently Sensitive” Analytical Methods

NACWA submitted comments August 9 on a June, 23 EPA proposal to modify its National Pollutant Discharge Elimination System (NPDES) regulations to require permittees to use analytical methods that are “sufficiently sensitive” when completing permit applications and when performing sampling and analysis pursuant to monitoring requirements in their permits.  The issue of sufficiently sensitive methods was first raised when EPA issued new, significantly more sensitive methods for analyzing mercury that were capable of detecting mercury at levels below current water quality criteria levels.  EPA issued a policy memo indicating that all permittees with the potential to discharge mercury should provide data with their NPDES permit applications using methods of sufficient sensitivity to indicate whether the discharge was above or below the criterion value.  EPA’s June 23 proposal seeks to make that policy clarification for mercury a part of the NPDES regulations and applicable to all pollutants, not just mercury.  While NACWA’s comments supported the goal of ensuring NPDES permits were based on accurate analytical results, several concerns were raised about the timing of EPA’s proposal and the way in which EPA was incorporating the new requirements into the regulations.  NACWA’s overarching concern is that EPA’s proposed action seems premature given the Agency’s ongoing assessment of the recommendations from the Federal Advisory Committee on Detection and Quantitation, which EPA convened in 2005 and on which NACWA was an active participant, regarding the need for a new and consistent definitions of method detection level and minimum level, among other things.  The June 23 proposal relies heavily on the minimum level concept, despite the fact that most stakeholders including the states and EPA believe the current minimum level definition is flawed.  In addition, the proposed rule appears to require the use of methods that have not been approved by EPA through the 40 CFR Part 136 process and that may not have undergone validation or any other scientific review.  Similar concerns were raised by other stakeholders and NACWA will be seeking a meeting with EPA to discuss the Agency’s next steps.

EPA Report: Treating Contaminants of Emerging Concern - a Literature Review

EPA has published the results of an extensive review of the recent literature on wastewater treatment technologies and their ability to remove a number of chemical contaminants of emerging concern (CECs). EPA has also made available a computer-searchable format of the data from this literature review. EPA developed this information to provide an accessible and comprehensive body of historical information about current CEC treatment technologies. Wastewater treatment plant operators, designers, and others may find this information useful in their studies of ways to remove CECs from wastewater. The report is not designed to promote any one technology nor is it intended to set agency policy or priorities in terms of risk. The literature review report and the searchable file were peer-reviewed for completeness and usability. The report can be found at http://epa.gov/waterscience/ppcp/studies/results.html. NACWA is currently reviewing the report’s results and will keep its members updated on any developments as they occur.