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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2011 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to April 29, 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
NACWA Discusses New Rules, Regulatory Reform with EPA Office of WaterNACWA organized an April 13 municipal sector association meeting with Jim Hanlon, Director of the Office of Wastewater Management in EPA’s Office of Water (OW), and other OW staff to discuss a variety of clean water issues. Hanlon reiterated that EPA has slowed its work on a comprehensive sanitary sewer overflow (SSO) rule due to budget and resource issues. He re-emphasized his commitment, however, to holding a one-day, facilitated workshop with NACWA and other stakeholders on the SSO issue, and to pulling it together in the next three to four months. The workshop would help EPA determine the issues that are of most importance to stakeholder groups and find points of consensus. NACWA’s SSO Workgroup – which worked on a draft petition for an SSO rulemaking last year – believes that blending must be part of a new SSO rule proposal, and Hanlon agreed that blending would have to be part of the conversation at the workshop. On nutrients, EPA provided an update on its efforts to develop a permit writer's guidance on nutrients. The focus of the guidance will be on how to conduct reasonable potential determinations and write permit limits for point sources when a state only has narrative nutrient criteria. EPA indicated that beyond the few states where EPA has permitting authority, this type of analysis and permit limit development for nutrients based on narrative criteria is not occurring. The Agency hopes to have a draft of the guidance completed in the next six months, but has not decided whether it will release the guidance as a draft for comment, or simply release the guidance as "interim" and seek feedback on an ongoing basis. NACWA expressed a strong preference for the former approach and indicated that it would like an opportunity to comment on the document as soon as possible. Also on nutrients, EPA confirmed that it has asked the National Academy of Sciences (NAS) to review the costs associated with the Agency's numeric nutrient criteria in Florida. EPA hopes the NAS review will be finished before the new criteria become effective early in 2012. NACWA also discussed its Money Matters™ campaign and the necessity of prioritizing a new approach to regulations. NACWA stressed that EPA’s plan for regulatory review under Executive Order 13563 is an important opportunity to examine the Clean Water Act rules and consider their cumulative impacts on utilities (see related story). Hanlon noted that OW would likely put approximately ten rules or policies on the review list and that the scope of this review would include all existing and even prospective policies, including guidance documents and criteria, rather than being limited to actual finalized rules. Hanlon also noted that a number of comments raised the need to review the 1997 combined sewer overflow financial capability guidance and that this was on table, as was looking at the need for a comprehensive SSO policy. Other issues discussed with EPA included an effort between OW and the enforcement office to clarify support for green infrastructure approaches and potential work to detail how to draft permit provisions for clean water agencies that are accepting wastewater from the hydro-fracking process. Many of the issues discussed above will be the subject of strategic discussions at NACWA’s National Environmental Policy Forum in Washington, D.C. in May.
Biosolids
Sewage Sludge Incineration Coalition, Legal Challenge to EPA Rules Take ShapeNACWA member agencies and other clean water utilities that operate sewage sludge incinerators (SSIs) continue to confirm their support for the Association’s SSI Advocacy Coalition (SSIAC). Work has already begun on NACWA’s petition for reconsideration of EPA’s final Clean Air Act (CAA) emission standards for SSIs and initial court filings for the Association’s legal challenges to both the SSI rule and the companion “definition of solid waste” rule. All clean water agencies that operate SSIs received a letter and information packet in March inviting them to join the SSIAC. Though responses were requested by April 1, NACWA is working with utilities that need additional time to seek the necessary approvals. NACWA’s petition for reconsideration and initial court filings on the SSI rule are due by May 20, and work has already begun on drafting these documents. NACWA will need to file its separate challenge of the definition of solid waste rule by June 17, 2011. Though NACWA is mounting a comprehensive legal effort to seek changes to EPA’s final rules, both rules have now been finalized and will remain in effect until a court rules otherwise. Accordingly, NACWA prepared detailed Advocacy Alerts on both rules to outline for member agencies the requirements and impacts the rules will have on them. The SSI rule is extremely complex with several key compliance dates over the next five years. Advocacy Alert 11-11 on the CAA regulations and Advocacy Alert 11-12 on the solid waste rule provide extensive information on compliance requirements and schedule milestones.
Climate Change
NACWA Supports Biogenic Greenhouse Gas Emissions Deferral at Public HearingNACWA participated in a public hearing on April 5, where it urged EPA to finalize its proposed three-year deferral of biogenic greenhouse gas (GHG) emissions from Clean Air Act (CAA) permitting programs and to eventually make it a permanent exemption. Biogenic GHGs are usually considered part of the natural carbon cycle and are exempt from all major regulatory and policy programs, including the Intergovernmental Panel on Climate Change (IPCC) and California’s cap-and-trade program. EPA’s Greenhouse Gas Tailoring Rule, which established a tiered process for including GHG emissions in the CAA Prevention of Significant Deterioration (PSD) and Title V programs, did not include a biogenic GHG exemption, however. In a March 21 Federal Register notice NACWA and its Climate Change Committee and Air Quality Workgroup will review the rule and provide comments by the May 5 deadline. Please provide any input for use in the comments to NACWA Director of Regulatory Affairs, Cynthia Finley, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by May 3.
Conferences and Meetings
NACWA Pretreatment Workshop to Focus on Ongoing and Emerging ChallengesJoin your clean water colleagues for the only conference specifically designed for pretreatment professionals! This year’s Workshop, taking place May 18-20 at the St. Louis Union Station Marriott, will take a close look at the latest developments in the pretreatment arena. With the theme of Meeting Pretreatment Challenges, Old & New, presentations at the Workshop will focus on new solutions to old problems, such as mandatory amalgam separators to reduce mercury discharges from dentists and new programs to reduce the flushing of unused pharmaceuticals. Staff from EPA Headquarters and the Regions will present the latest news in Agency actions on these issues. New issues will also be featured, such as treatment of wastewater from hydraulic fracturing and the beneficial uses of food wastes in wastewater treatment processes. The Workshop will also provide opportunities for pretreatment professionals to network and discuss problems and issues in small group sessions. NACWA has secured a special group rate of $129 per night (single/double), at the St. Louis Union Station Marriott. Be sure to make your reservations by Tuesday, May 3, by calling the hotel directly at 314/621-5262. View the preliminary agenda
Emerging Contaminants
NACWA Stresses Need for Source Control and Improved Assessment of Triclosan’s Impacts, Opposes Clean Water Act RegulationNACWA filed comments NACWA’s letter highlighted that the CWA provides clean water agencies the authority to regulate industrial and commercial discharges that might interfere with their treatment processes or pass through the plant untreated, but that there is no authority to regulate households, where hundreds of consumer products and other household applications containing triclosan enter the sewer system. NACWA has long advocated that these types of contaminants of emerging concern must be regulated at their source. Nevertheless, the pressure for action is mounting. Several environmental NGOs have already separately petitioned EPA to use its CWA authority to regulate similar contaminants and this most recent petition, which focuses on triclosan, seeks to impose effluent limitations and biosolids pollutant levels for triclosan. NACWA believes that the use of EPA’s CWA authorities to address environmentally relevant concentrations of triclosan or other emerging contaminants, before the federal government applies a coordinated and comprehensive evaluation process at the point of approval, is inappropriate and would likely lead to the imposition of costly and technically infeasible limits for clean water agencies. The only practical and cost-effective means of controlling triclosan discharges is the use of existing EPA authorities under FIFRA and Food and Drug Administration authorities under the Federal Food, Drug, and Cosmetic Act (FFDCA) to control the sale and use of triclosan at its source. NACWA will continue to track EPA’s efforts to respond to the petition on triclosan and any work that EPA may have underway to address triclosan using its CWA authorities.
Environmental Justice
NACWA to Comment on EPA Environmental Justice Initiative, Seeks Member InputEPA is currently working to develop a list of potential tools and recommendations for better integrating environmental justice (EJ) considerations into the permitting process and into permit conditions. Last summer, EPA launched Plan Environmental Justice 2014, a roadmap to help EPA integrate EJ concerns into the Agency’s programs, policies, and activities. NACWA provided comments Since releasing its Plan EJ 2014, EPA has been working on several Plan-related efforts across the Agency focused on advancing EJ. One of those elements is the EJ Permitting Initiative through which the Agency wants disproportionately burdened communities to have full and meaningful access to the permitting process in order to ensure that permits issued under EPA’s authority address EJ issues to the greatest extent practicable. In addition to seeking comments on the draft implementation plan
EPA/Regulatory Review
NACWA Submits Comments on EPA Regulatory Review InitiativeNACWA submitted comments In conducting this review, NACWA also recommended that a shift in the nature of regulatory or policy review at EPA “must have as its foundation stones sound science, affordability, cost, public participation, municipal flexibility, and environmental benefit.” These foundation stones must be used to guide the review of any policy, such as the examples that NACWA specifically mentioned in its comments, which included a sanitary sewer overflow policy, EPA’s 1997 CSO affordability guidance, wet weather enforcement/consent decree actions, Florida nutrient criteria development, whole effluent toxicity testing, sewage sludge incineration rules, and, upcoming stormwater regulations. During an April 13 meeting with EPA, Jim Hanlon, Director of the Office of Wastewater Management in the Office of Water indicated that the water office would likely put approximately ten rules or policies on the regulatory review list and that the scope of the review would include all existing and even prospective policies, including guidance documents and criteria, rather than being limited to actual finalized rules (see related story). NACWA is meeting next week with the EPA staff in charge of the regulatory review process and will keep members informed about new developments in the review process.
Pretreatment
NACWA and Quicksilver Caucus Discuss Recommendations for Dental Amalgam Separator RuleIn anticipation of EPA’s upcoming draft rule requiring amalgam separators at dental facilities, the Quicksilver Caucus, which is led by the Environmental Council of the States (ECOS), invited NACWA members and several state pretreatment coordinators to participate in two conference calls to discuss recommendations for the rule. EPA plans to propose the rule in October 2011 and finalize it by October 2012. In a November 2010 meeting, NACWA provided EPA with its recommendations and concerns about the rule, which will require amalgam separators as pretreatment standards. NACWA’s primary concern is the potential impact to utility pretreatment programs that may be required to verify compliance for hundreds of dental offices in their service areas, a substantial burden in terms of employee time and cost. As a follow-up to this November 2010 meeting, NACWA provided EPA with additional input in April for consideration in the rule proposal. The Quicksilver Caucus also sent a letter EPA will be providing an update on the rule development at the NACWA 2011 Pretreatment & Pollution Prevention Workshop, May 18-20, in St. Louis (see related story). NACWA will continue to follow EPA’s actions with the rulemaking and will provide input to the Agency as needed.
EPA and Pennsylvania Address Handling of Hydraulic Fracturing WastewaterOn March 17, EPA issued a memo and frequently asked questions (FAQs) In related news, the Pennsylvania Department of Environmental Protection (DEP) released a statement NACWA recently completed its hydraulic fracturing member survey where the Association found that two public agency members currently treat produced fracturing wastewater. Although this number is small, POTW involvement could expand as the natural gas industry expands. POTWs in seven states are currently allowed to accept fracturing wastewater. NACWA will continue to gather information on this issue and will update membership on any developments as they occur.
Stormwater
NACWA and Key Municipal Groups Meet with EPA, Urge Changes to Stormwater MemoNACWA met with top EPA Office of Water officials April 12 to discuss the Agency’s controversial November 2010 memo As a result of pressure from NACWA and others, including a municipal letter
Water Quality
NACWA Briefs Key State Workgroup, EPA on Nutrient Summit OutcomesNACWA staff and the leadership of the Water Quality Committee briefed the Association of State and Interstate Water Pollution Control Administrators’ (ASIWPCA) Nutrient Policy Committee April 19 on the findings from NACWA's Nutrient Summit last fall. NACWA previously outlined some of the key themes from the Summit for state water regulators during ASIWPCA's mid-year meeting in March. With NACWA's issue paper Among other common concerns, NACWA and ASIWPCA have both stressed the complexity of the relationship between nutrients and water quality impacts and raised concerns over EPA's continued insistence on the application of numeric values for nitrogen and phosphorus to all waterbodies independent of what other monitoring data may be indicating. With recent events in Florida and other states drawing attention to the general lack of progress on addressing nutrient-related impacts, members of NACWA and ASIWPCA have been working to identify rational approaches to making additional progress. EPA’s recent memorandum NACWA also discussed the new EPA memorandum and NACWA’s issue paper with Nancy Stoner, Assistant Administrator for Water, in a separate April 14 meeting. Despite EPA’s actions in Florida, the Agency continues to stress that Florida is unique and that the real activity on nutrients is at the state and regional level. NACWA will be meeting further with ASIWPCA in the coming weeks and months to explore key areas where the two organizations can better collaborate. NACWA is also planning additional discussions with EPA on issues surrounding nutrient criteria development.
NACWA Reviewing New EPA Draft Document on Identifying and Protecting Healthy WatershedsNACWA is reviewing a recently released draft technical document titled Identifying and Protecting Healthy Watersheds: Concepts, Assessments, and Management Approaches. The draft document is intended to provide the basis for implementing EPA’s new Healthy Watersheds Initiative, which the Agency hopes will protect the nation’s remaining healthy watersheds, prevent them from becoming impaired, and accelerate restoration successes. Historically, EPA’s programs have focused on cleaning up watersheds that are already impaired. The draft technical document includes an overview of the key concepts behind the Healthy Watersheds approach, examples of assessments of healthy watershed components, an integrated assessment framework for identifying healthy watersheds, examples of management approaches, sources of national data, and key assessment tools. It contains numerous examples and case studies from across the country. NACWA is determining whether to provide comments on the draft document before EPA’s June 3, 2011 deadline. |
, EPA proposed a rule to defer biogenic emissions from CAA programs while it continues to study the issue. The deferral applies only to carbon dioxide emissions, and not to methane or nitrous oxide emissions resulting from the combustion of biomass or biogas. The proposal specifically defers emissions from combustion of biogas and biosolids resulting from the wastewater treatment process. During the public hearing, NACWA emphasized the environmental benefits of utilizing biogas and biosolids for generating heat and electricity, reducing and, in some cases, eliminating utility reliance on fossil fuels and power derived from fossil fuels. NACWA also asked EPA to explicitly defer biogenic emissions from other wastewater treatment processes, since sewage must be treated and utilities should not be penalized for their role in protecting human health and the environment.