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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the January 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to February 8, 2011.  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

Court Rules on EPA Incineration Rule Extension Request, Sets New Deadline of Feb. 21

A federal court in Washington, DC issued an order January 20 rejecting EPA’s request for a six month extension of the deadline to publish a final sewage sludge incineration (SSI) rule under the Clean Air Act (CAA), and instead granted only a one month extension to February 21.  In making its decision, the court concluded that EPA had failure to present sufficient evidence as to why an additional six months would be needed to respond to public comment on the rule.  The court also noted that EPA has received numerous extensions in the past regarding publication of the rule and stated that because the CAA imposes a non-discretionary requirement on the Agency to publish the rule, only a one month extension was warranted.  The ruling comes in response to a motion filed last month by EPA asking for the SSI rule deadline to be moved to July 2011 to give the Agency sufficient time to respond to public comment on the rule.  NACWA supported EPA’s motion in a separate memorandum filed with the court.  Given that EPA had less than two months to consider comments and make revisions to the flawed proposal, NACWA is concerned that the Agency had too little time to make any substantive changes.

NACWA is disappointed in the court’s ruling and believes the six month extension, as requested by EPA, was appropriate.  However, NACWA has already taken action to address the final rule once it is released.   NACWA’s Board of Directors voted February 2, to approve a two-pronged challenge to EPA’s final rule, pending the Association’s review of the contents of the final version of the CAA standards.  The first action would be a petition filed with EPA for reconsideration of the rule.  If EPA were to grant such a petition, the Agency could potentially delay implementation of the rule while reviewing the substance of the rule itself and possibly seek additional public comment.  On a parallel track, NACWA would also file a formal legal challenge to the rule through the federal court system, which would preserve the Association’s right to challenge the contents of the rule and provide leverage to ensure the Agency acts upon the Association’s petition for reconsideration.  NACWA’s members who incinerate will meet via conference call during the week of February 14 to discuss the Association’s next steps.

Since filing comments on EPA’s proposed maximum achievable control technology (MACT) standards for SSIs, NACWA has continued to pressure EPA to correct the significant errors in the proposed standards and to challenge the Agency’s authority to regulate SSIs under Section 129 of the Clean Air Act (CAA).  NACWA met with the top official in EPA’s air office on December 20 to reiterate its concerns with the proposal, including overstated emissions estimates, erroneous assumptions regarding the wastewater treatment process and sewage sludge, and understated costs associated with pollution control devices needed to meet the proposed standards.  During the meeting NACWA also outlined why it believes EPA has overstepped its statutory authority by proposing to regulate SSIs under Section 129 of the Clean Air Act.  NACWA will also meet with the White House’s Office of Management and Budget before the final rule is published to seek key changes to EPA’s proposal.

Climate Change

EPA Defers Regulation of Biogenic Carbon Dioxide Emissions for Three Years

EPA announced January 12 that it is deferring CAA greenhouse gas (GHG) permitting requirements for biogenic carbon dioxide (CO2) emissions for three years and will use this time to study these emissions and develop a rulemaking on how they should be treated under the CAA.  The announcement was made by EPA Administrator Lisa Jackson in letters to Sens. Stabenow (D-Mich.), Baucus (D-Mont.), Merkley (D-Ore.), and Rep. DeFazio (D-Ore.) and through a press release.  The letters state that EPA will complete a rulemaking by July 1 “to defer for three years the application of the pre-construction permitting requirement to biomass and other biogenic CO2 emissions.”  The letters do not refer to the Title V operating permits under the CAA that many publicly owned treatment works (POTWs) already have, and NACWA has contacted EPA to find out if the Agency also intends for biogenic emissions to be deferred for Title V permits.

Regulation of GHGs under the CAA took effect on January 2, and the prevention of significant deterioration (PSD) and Title V permitting programs of the CAA are being phased in incrementally for GHG emissions under the GHG Tailoring Rule.  EPA used this incremental approach so that only the largest emitters would be affected for the first two years of the program.  There was, however, insufficient guidance on how emissions should be calculated and several NACWA members had already been contacted by their state permitting authorities that believed the GHG emissions from wastewater utilities would exceed current thresholds in the GHG Tailoring Rule.  Although a little-publicized report on EPA’s website attempts to provide some guidance on how to calculate emissions for wastewater treatment (see below), there are still many questions about how emissions, and particularly biogenic emissions, should be calculated.  Exemption of biogenic emissions – such as CO2 emissions from the combustion of biosolids and biogas and the wastewater treatment process – will likely keep wastewater utilities under the current thresholds.  GHG emissions from non-biogenic sources – such as those from combustion of fossil fuels, anaerobic digesters, and the nitrification/denitrification process – will still be subject to current requirements.  States may also have more stringent permitting requirements than EPA and may still include biogenic emissions in their requirements.

NACWA plans to issue an Advocacy Alert later this month with more details about GHG emissions requirements.  NACWA asks that member agencies contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if they have received notification from their air quality regulator that they may be subject to CAA requirements due to GHG emissions.

NACWA to Comment on EPA Report Providing Inaccurate Methods for Emissions Estimates

A December 14 report, Greenhouse Gas Emissions Estimation Methodologies for Biogenic Emissions from Selected Source Categories: Solid Waste Disposal, Wastewater Treatment, Ethanol Fermentation , was recently posted on EPA’s Clearinghouse for Inventories and Emissions Factors website.  This report was written for EPA by the Research Triangle Institute, and is an attempt to provide technical guidance on how to calculate emissions for CAA requirements.  A preliminary review of the report by the Water Environment Research Foundation (WERF), the California Wastewater Climate Change Group (CWCCG), and NACWA has shown that the report’s methods contain inaccuracies and misrepresentations of ongoing emissions research.  NACWA, WERF, and CWCCG are working together to provide comments to EPA about this report and will recommend that the report be removed from the Agency’s website until the public has a chance to comment on it and problems in the methods presented in the report can be fixed.  NACWA will work with its Climate Change Committee to complete its review of this report and will keep members informed about EPA’s response.

Conferences and Meetings

Register Today for NACWA’s Money Matters Summit & Fly-In

Join clean water utility executives in Washington, D.C., March 1-2, for the Money Matters Summit and Fly-In.  The Fly-In will bring together clean water agency leaders and top EPA and Congressional policy-makers to discuss real-world Clean Water Act financial and affordability challenges and solutions.  Over the years, the list of regulatory requirements continues to expand  — nutrients, sanitary sewer overflow control, combined sewer overflow control, stormwater management, biosolids and incineration, emerging contaminants, and others are all Agency priorities —  while at the same time public clean water utilities continue to shoulder the vast majority of the growing costs associated with aging clean water infrastructure.  Municipalities throughout the country continue to make sound investments in their systems but face a regulatory landscape where everything has become a regulatory priority while economics have become an afterthought at the federal level.  Make your plans today to participate in the Summit and also to set up meetings on Capitol Hill with your Representatives and Senators as part of the Fly-In on the afternoon of March 1. Registration is now available and space is limited so register today.  There is no registration fee for NACWA public agency members and there is a $500 registration fee for private affiliates who have not contributed to the Money Matters campaign.

Emerging Contaminants

NACWA and Food & Water Watch Launch Triclosan Survey

NACWA requests that its public agency members complete a short, anonymous survey that it is conducting with Food & Water Watch (FWW).  Triclosan is a popular antimicrobial pesticide used in consumer products including soaps, detergents, cleaning products, and toothpaste, but may have adverse human health and environmental impacts, and it is often found in biosolids.  FWW plans to use the results of this survey to highlight the need for a precautionary approach, namely a ban on the non-medical uses of triclosan, and will include the survey results in a report that it will use to advocate for this ban.  Introduction of a bill banning triclosan is expected later this year, and FWW is holding a congressional briefing on February 17.  NACWA will use the survey results in its advocacy efforts with EPA for better testing during the pesticide approval process and in its ongoing National Dialogue on Safe and Sustainable Consumer Products, which seeks to keep pollutants out of the sewer system rather than requiring clean water agencies to remove them.

NACWA requests that member utilities complete the voluntary online survey by Friday, February 18.  We ask that each utility only submit one response to the survey.  The survey consists of 16 yes/no type questions, with an opportunity to explain some answers and provide additional comments.  Members with questions about the survey should contact Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Participates in DEA Meeting on Unused Pharmaceutical Disposal

NACWA provided input during a January 19-20 public meeting sponsored by the Drug Enforcement Agency (DEA) to discuss the development of regulations for the safe disposal of unused pharmaceuticals by consumers and long-term care facilities.  The DEA is developing these regulations to implement The Secure & Responsible Drug Disposal Act of 2010 (S. 3397), which encourages the Attorney General to establish regulations that prevent the diversion of controlled substances while still allowing development of  a variety of collection methods in a secure, convenient, and responsible manner.  Many NACWA members are involved with pharmaceutical take-back programs, but the programs are hampered by restrictions of The Controlled Substances Act, such as the requirement that controlled substances only be turned over to a law enforcement officer.

NACWA’s comments at the meeting focused on the need for disposal options that are convenient for consumers to use and protective of the environment.  Although DEA’s focus is primarily on preventing diversion of controlled substances, most of the speakers at the meeting recognized that flushing is not an environmentally-protective method of pharmaceutical disposal and recommended more widespread take-back programs.  Although collection and incineration of unused pharmaceuticals is the preferred disposal method, several government agencies continue to recommend disposal in the garbage. This method, however, does not adequately protect the environment because pharmaceuticals have been detected in landfill leachate that is often conveyed to wastewater treatment facilities.  NACWA also urged all government agencies to be consistent with their pharmaceutical disposal recommendations, as stated in prior correspondence to EPA.

NACWA, through its Targeted Action Fund (TAF), has supported a Product Stewardship Institute (PSI) project to study disposal options for pharmaceuticals.  The Association is supporting PSI’s recommendations for take-back programs through the mail, and at retail pharmacies and other community facilities.  PSI has also recommended that EPA be consulted in the development of new regulations so that the goals and requirements of the Clean Water Act, the Resource Conservation & Recovery Act, and the Solid Waste Disposal Act are met.

DEA will consider the input it received through the public meeting and the written comments received, when drafting a proposed rule.  The public will be given the opportunity to comment on its proposal.  DEA does not yet have a schedule for this rulemaking but gave assurances that the Agency was moving as quickly as possible.  NACWA will follow DEA’s work and keep members informed of new developments.

EPA Personnel

EPA Makes Key Staff Changes: Silva to Leave EPA, Stoner to Serve as Acting AA for Water

EPA Administrator Lisa Jackson announced that effective February 12, Pete Silva will be leaving EPA and his position as Assistant Administrator (AA) for the Office of Water.  Silva plans to return to California.  Upon Silva’s departure, Nancy Stoner will be named acting AA for Water.  NACWA worked closely with Silva on a suite of issues, and always found him approachable and knowledgeable and wishes him well in his future endeavors.  NACWA has enjoyed a long working relationship with Stoner and will continue to work closely with her in her new role as acting AA for Water, beginning with a meeting on February 9 to discuss priority issues for NACWA members.

Facilities and Collection Systems

EPA Still Considering Regulatory Action on SSO, Collection System Issues

NACWA recently learned that EPA continues to evaluate the possibility of pursuing a comprehensive national policy addressing sanitary sewer collection system issues and sanitary sewer overflows (SSOs) and is now expected to make a determination on whether to proceed with such a policy in early 2011.  During his remarks at NACWA’s Winter Conference in Ft. Lauderdale, Jim Hanlon, Director of the Office of Wastewater Management, indicated that work on the issue had slowed, but that it had not stopped.  Hanlon indicated that the issue remains a “personal priority” and that it “deserves clarity”.  The Agency announced in July 2010 through a Federal Register notice that it was requesting public input on whether to pursue additional regulatory proposals regarding sanitary sewer collection systems and SSOs, and subsequently informed NACWA in October 2010 that a decision on the matter was expected to be made by the end of the calendar year.  However, at a meeting in late December, EPA staff informed NACWA that internal deliberations regarding a potential national SSO rule were continuing and that a determination regarding possible next steps on the issue would not be made until after the New Year.

NACWA submitted comments to EPA in August encouraging the Agency to pursue a comprehensive, holistic policy addressing sanitary sewer overflows and collection systems issues.  The Association continues to assert that in order to provide clean water utilities with much-needed regulatory predictability and consistency, especially regarding the issue of peak wet weather flow blending, such a policy is critical.  This view has been bolstered by the recent U.S. Eighth Circuit Court of Appeals decision affirming the dismissal of a lawsuit filed by the Iowa League of Cities regarding blending issues.  NACWA will continue to advocate with EPA and is prepared to take legal action when appropriate on these very important issues and will report any new developments to members as they occur.

Stormwater Management

NACWA Submits Additional Comments on Stormwater Rule to EPA

NACWA submitted comments to EPA January 21 regarding the Agency’s ongoing rulemaking process to develop a new national stormwater rule. The comments express support for the use of innovative techniques to address stormwater runoff issues, but caution EPA against proposing an overly restrictive rule that would impose unnecessary economic burdens on municipal stormwater utilities.  NACWA’s comments acknowledge the need to better address the water quality problems created by urban stormwater runoff and support the concept of new development and redevelopment performance standards to better control stormwater onsite, provided such standards are developed in an appropriate manner.  At the same time, NACWA expresses concern with EPA’s plan to include urban stormwater retrofits as part of the proposal, noting that such a requirement will place significant economic challenges on communities at a time when many municipalities are facing severe budget shortfalls.  If EPA chooses to proceed with a retrofit requirement, NACWA’s comments encourage the Agency to provide municipalities with a significant period of time – to both plan and implement a retrofit program – given the significant cost involved.

The comments were filed in response to a federalism consultation NACWA attended last month where EPA provided a presentation on some of the current options the Agency is considering.  This is the third time NACWA has commented on the rulemaking process, with previous comments filed last year in February and December.

NACWA Weighs in on EPA Stormwater Memorandum

NACWA, together with the American Public Works Association (APWA) and the National Association of Flood and Stormwater Management Agencies (NAFSMA), wrote EPA January 28 in response to the Agency’s November 2010 memo that state, among other things, that numeric limits should be used where feasible in municipal stormwater permits.  The NACWA, APWA, NAFSMA letter challenged both the content of the letter and the process EPA followed to issue the memo, which reflects a major policy shift for the Agency from its last policy memo in 2001.  The Association letter also notes that EPA’s new approach to stormwater permitting appears inconsistent with existing statutory and legal requirements for municipal stormwater control.  NACWA will be meeting with EPA to discuss this critical issue further and will keep its members apprised.

Water Quality

NACWA Chesapeake Bay-Area Members Discuss EPA’s Final TMDL

NACWA held a conference call on January 13 with its members in the Chesapeake Bay watershed to discuss the final total maximum daily load (TMDL) for the Bay, released by EPA on December 29, 2010.  Although NACWA and its members are still reviewing the final TMDL, it appears that it is similar to the draft.  This is not surprising given the complexity of the TMDL and the short time period between the public comment deadline and EPA’s self-imposed deadline for issuing the final TMDL by the end of 2010.  NACWA submitted comments on the draft TMDL and remains concerned that the final TMDL will result in an inequitable share of further load reductions for wastewater treatment facilities and other point sources.  Nonpoint sources, meanwhile, including agriculture, are not made a significant enough part of the pollution load reduction regime.  NACWA’s Chesapeake Bay members remain concerned about the science behind the TMDL and how the TMDL is changing plans the utilities made under the previous tributary strategies.  For utilities that are moving to the limit of technology for nutrient removal, unused capacity at their facilities could be affected if EPA imposes backstops for nonpoint sources not meeting their nutrient reduction targets.  NACWA will follow the TMDL’s implementation and its effects on Bay watershed members, as well as the implications of this approach on the Association’s advocacy efforts both on upcoming Farm Bill negotiations and a national watershed approach.

NACWA Supports California Member Agencies in Letter on Whole Effluent Toxicity

NACWA sent a strongly worded letter January 20 to the California State Water Resources Control Board (SWRCB or Board) expressing significant concerns with the Board’s proposed Policy for Toxicity Assessment and Control.  NACWA noted in its letter that the proposed policy will have immediate consequences for clean water agencies in California “and will potentially set a dangerous precedent that could ultimately impact utilities in other states.”  The letter sets out a number of concerns with the proposal, noting that “while NACWA has had concerns with the entire suite of WET methods and endpoints, the Association’s primary focus continues to be on chronic toxicity issues where permit compliance or reasonable potential determinations may be more a function of the method itself, rather than effluent quality.”  The letter focuses on concerns with the Test of Significant Toxicity (TST) approach, focusing on the unacceptably high rate of false positive tests and the potential compliance ramifications to California’s and the Nation’s utilities.  NACWA will keep members apprised of developments in the California SWRCB’s policy efforts.

NACWA Comments on EPA’s Characterization of Aquatic Life Impacts of Pesticides

NACWA submitted comments on January 14 to EPA regarding the effort by the Office of Water (OW) and Office of Pesticide Programs (OPP) to develop a common methodology for characterizing the effects of pesticides on aquatic life.  Currently, OPP’s requirements for approving pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) are less stringent than OW’s toxicity testing requirements.  While NACWA stated in its comments that “the preferable method for protecting aquatic life would be to require pesticide registrants to test for impacts on the same sensitive species that OW uses in its toxicity test procedures,” this would require regulatory changes that EPA is not willing to undertake yet.  NACWA recommended that “in the absence of regulatory changes to make OW and OPP testing procedures identical, EPA’s effort to develop a common effects characterization should ensure that the aquatic life screening values that are developed will not exceed concentrations that cause acute or chronic toxicity to species in OW’s standard aquatic toxicity testing species.”  NACWA also recommended that EPA use its planned guidance document on the characterization to address policy as well as technical issues, and asked that the Agency state clearly in this document that the assessment methodologies should not be used to develop water quality standards.  EPA plans to complete this project next year and NACWA will both follow the progress on the project and review the guidance document if EPA makes it available for public review.

NACWA Participates in EPA Research Planning Workshop Focused on Holistic Approaches to Clean Water, Drinking Water

NACWA and representatives from several of its member agencies participated in a workshop January 25 hosted by EPA’s Office of Research and Development (ORD) on the Safe and Sustainable Water Resource (SSWR) research program that it is planning.  During the meeting, EPA provided information about the SSWR program and asked for stakeholder input on the goals, objectives, and themes of the research that will be conducted.  The overall goal of the SSWR is to integrate the existing drinking water and water quality research programs into one holistic program that maximizes responsiveness to the needs of the EPA Office of Water and its critical water resource partners and stakeholders.

With the program, EPA hopes to promote innovation and find sustainable, holistic solutions to water quantity, water quality, and other ecosystem problems.  NACWA and its member agencies – including the Hampton Roads Sanitation District, the Philadelphia Water Department, and DC Water – had many suggestions for ORD to use in redefining its goals and research themes for the SSWR research program.  One of the major themes for research was to ensure the holistic protection and restoration of watersheds.  NACWA and its members participated in a thorough discussion about this theme and the types of research that could help advance this goal.

ORD plans to take the input that it received at the workshop and produce an updated draft of the research plan.  NACWA will continue to work with ORD on the SSWR research program and will keep members informed of any new plans or projects related to this research.