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NACWA Prominent at Integrated Planning Workshops, Files Comments on EPA Framework

NACWA participated in the fifth and final integrated planning workshop on February 17 in Chicago, rounding out a busy week that included two other workshops in Seattle and Kansas City, Kansas.  NACWA was well-represented at all five workshops and its members provided EPA with diverse perspectives on how an integrated planning framework could benefit their respective communities.  Based on the discussions at each of the workshops and on input from the membership gathered during the NACWA Winter Conference, NACWA filed written comments on February 29 on EPA’s Framework .

NACWA’s comments commended EPA for listening to the clean water community and municipalities nationwide who have raised concerns that the Agency was simply demanding too much, with every requirement being a top priority.  At the same time, NACWA expressed significant concern with the extent to which the Framework will provide meaningful relief for its member agencies.  For those communities that are facing imminent federal enforcement or perhaps are already in negotiations with the government, the Framework will likely provide a pathway for the community to present a more locally-driven plan for meeting its obligations.  But for many communities, the Framework’s promised flexibility may not be enough for them to embark on a costly and time-consuming planning effort without the certainty of it being approved.  NACWA also noted that the Framework is focused primarily on the sequencing of investments to meet current Agency policy regarding combined sewer overflow (CSO), sanitary sewer overflow (SSO), and stormwater compliance (e.g., four to six CSOs and zero SSOs), and does not contemplate a true cost-benefit approach to determining where community resources are best spent to achieve water quality.  NACWA continues to believe that a legislative fix will be needed to establish a more holistic, watershed-based approach.

EPA’s Framework, though limited in its scope, does present a valuable opportunity to see what more can be done to address the concerns of the clean water community within the current bounds of EPA’s policies and the Clean Water Act.  NACWA’s comments express its commitment to seeing whether the approach contemplated by EPA can succeed and its willingness to work with EPA and communities interested in integrated planning.  EPA plans to revise the Framework based on the comments and input from the workshops and release an updated version by the end of March.  EPA has also indicated that it hopes to release a list of case studies that might provide interested communities with some information on how integrated planning can be accomplished.

NACWA Discusses Top Issues, Utility Sustainability with EPA

NACWA met with EPA’s Assistant Administrator for Water Nancy Stoner and key EPA officials, along with representatives of other municipal water and wastewater organizations, on February 9 as part of a regular dialogue with the Agency.  A top issue was the status of EPA’s post-construction stormwater rule.  EPA continues to struggle with its evaluation of the costs and benefits of the rule and is currently renegotiating a new deadline for proposing the rule.  The Agency does not expect to have a final timetable for when the rule will be published until March, but indicated that the December 2012/January 2013 timeframe is likely for the proposal.  EPA also indicated that it would make a final decision on whether to revise its controversial memo on stormwater and TMDLs from November 2010.  The Agency reported that it will make a decision on whether to revise the memo, withdraw it, or leave it unchanged in the next month or so.

During the meeting EPA also provided an update on its integrated planning initiative.  Following the workshops that are now underway, the Agency will consider any changes needed and work to finalize the framework by the end of March.  EPA is encouraging interested utilities to consider moving forward as ‘early adopters’ of the framework, but indicated that it was not looking for official pilot communities to work with directly.  Instead, the Agency is interested in developing a list of case studies – communities that are already doing some form of integrated planning – to provide examples.  During the meeting, officials from the drinking water community expressed strong concerns that moving forward with this initiative without including drinking water considerations would actually harm public health by committing funding for large wastewater and stormwater projects at the expense of needed drinking water investments.  During the February 17 integrated planning workshop, EPA indicated that drinking water investments could be considered as a part of the affordability analysis that would accompany an integrated plan.

EPA also discussed a new handbook on utility sustainability, Planning for Sustainability: A Handbook for Water and Wastewater Utilities .  NACWA members were involved in drafting the document and the Association provided comments on an earlier draft.  The Agency also provided an overview of the recent National Research Council report on sustainability, noting what impacts it might have on EPA and the water sector.  EPA is interested in discussing next steps with the utility community based on the recommendations from the report.  NACWA will be following up with the Agency on this issue.

Biosolids Management

NACWA Provides Input on Solid Waste Rulemaking

NACWA submitted comments February 21 on EPA’s reconsideration of, and proposed revisions to, the March 21, 2011 final Non-Hazardous Secondary Materials (NHSM) rule (76 Fed. Reg. 80452; December 23, 2011).  While the Association disagrees with EPA’s finding that all sewage sludge is a solid waste when combusted and has filed a judicial challenge of that decision, the rule remains in effect.  Though the proposed changes will not benefit sewage sludge incinerators, NACWA is optimistic that some of the rule’s provisions can be modified to reduce barriers to using biosolids as a renewable fuel.  The additional clarification and proposed categorical non-waste determination process could make it easier for utilities interested in burning dried solids or pellets as a fuel or fuel substitute.  Utilities that wish to dry and burn their own biosolids for energy recovery can do so through the self-implementing provisions of 40 CFR 241.3 by demonstrating that their biosolids have been sufficiently processed and can meet EPA’s legitimate fuel criteria.  The proposed revisions to 241.3 help to clarify elements of EPA’s legitimate fuel criteria and should make it easier to make this demonstration.  The new categorical non-waste determination process may provide an opportunity for an industry-wide exemption, but it remains to be seen whether biosolids, which can be significantly variable in terms of pollutant levels, could qualify for the categorical determination.

Even if the categorical determination is not applicable, those public utilities that may want to provide their sludge to a third party for use as a fuel, can petition for a non-waste determination from the appropriate EPA Regional Administrator.  This determination only applies to the particular facility requesting the determination.  NACWA was encouraged to learn that a community in Michigan has already successfully gone through the petition process.  EPA’s formal non-waste determination letter for that community is posted on the EPA website.  The proposed revisions to the NHSM help to further clarify this petition process.  EPA intends to finalize the revisions to the NHSM rule this spring.  NACWA’s legal challenge to the rule has been placed in abeyance pending the Agency’s final publication of revisions to the rule.

EPA to Deny Reconsideration of SSI Rule, NACWA Legal Efforts to Intensify

NACWA learned February 2 that EPA is planning to officially deny the Association’s administrative petition for reconsideration of the Agency’s sewage sludge incinerator (SSI) rule.  An official denial is expected to be published in the Federal Register soon.  EPA also announced that it will deny a separate petition for reconsideration of the SSI rule that was filed by the Sierra Club.  While NACWA is disappointed, this final decision by the Agency is not entirely surprising given EPA’s indication in August that it would likely deny the Association’s request.  One positive outcome from this development is that because denial will occur before the start of briefing in the Association’s parallel legal challenge, NACWA will now be able to incorporate the Agency’s action on the reconsideration.  Briefing was scheduled to begin at the end of February, although this will now be temporarily delayed while a new schedule is set.  NACWA anticipates that briefing in the legal challenge will probably be pushed back by three or four months.  The Association is now in the process of negotiating a new litigation schedule with the other parties in the case.

Clean Water Act Jurisdiction

CWA Jurisdiction Guidance Heads to OMB, NACWA to Weigh In

EPA and the U.S. Army Corps of Engineers (Corps) forwarded proposed final guidance on Clean Water Act (CWA) jurisdiction to the White House Office of Management & Budget (OMB) on February 21 for interagency review.  NACWA will be meeting soon with OMB to discuss this development.  The guidance, now called the “Clean Water Protection Guidance,” follows the publication last year of draft guidance by EPA and the Corps for public comment.  NACWA submitted comments on the draft guidance in July, expressing general support for efforts to strengthen water quality protection as part of a holistic watershed approach but also calling for clarification on a number of key issues.  In particular, NACWA stated that any final guidance should preserve the existing regulatory exemption for waste treatment systems, and also should include explicit exemptions for municipal stormwater collection systems and groundwater from CWA jurisdictional coverage.  The draft guidance maintained the existing exemption for waste treatment systems and EPA has advised NACWA that stormwater collection systems and groundwater were intended to be exempted.  The Association wants to ensure this is the case in the final guidance.

EPA received nearly 250,000 comments, many of which encouraged the Agency to abandon the guidance effort and pursue a formal rulemaking process instead.  Since EPA announced in October that it was initiating a jurisdictional rulemaking in conjunction with the Corps, this decision to send final guidance to OMB is somewhat surprising.  NACWA plans to meet with OMB to ensure that the Association’s position on the guidance, including the previous comment document, is considered during the interagency review process and will keep the membership updated on developments.

Climate Change

EPA Publishes 2010 Greenhouse Gas Inventory

EPA published its draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2010 (Inventory) on February 27.  This annual Inventory estimates greenhouse gas (GHG) emissions for different categories, including wastewater treatment, and is used for information purposes only.  Although no regulations are based on the Inventory, the wastewater treatment GHG emission estimation methods used in the Inventory have been cited by EPA as possible calculation methods for other purposes, such as calculating emissions for Clean Air Act compliance under the Greenhouse Gas Tailoring Rule.  For this reason, NACWA believes it is critically important that the Inventory estimates reflect actual emissions as accurately as possible.  NACWA has commented on the previous five GHG Inventories, resulting in several improvements in the clarity and accuracy of the GHG emissions estimates for municipal wastewater treatment.  NACWA’s initial review of the 2010 draft Inventory found no significant changes over the previous Inventory.  NACWA and its Climate and Energy Committee will thoroughly review the Inventory and will provide comments by the March 28 deadline.

Conferences and Web Seminars

Clean Water Act & Clean Air Act 101: It All Starts Here

NACWA is pleased to offer a two-part web seminar series on the critical federal statutes that impact virtually every aspect of your utility operations.  Whether new to the clean water arena, or a seasoned professional, this series offers a unique opportunity for you and your agency’s staff.

Clean Water Act 101 will take place on March 8, 2:00-3:30 pm Eastern, and will provide a valuable overview of the Clean Water Act’s (CWA) statutory provisions and regulations related to the important topics impacting public clean water agencies, from water quality standards, effluent limitations, total maximum daily loads (TMDLs), use attainability, pretreatment, biosolids management, enforcement and more. Conducted by two leading CWA attorneys, this invaluable seminar will serve as an excellent introduction to, or refresher on, the Clean Water Act.

The second session of this series, Clean Air Act 101, will take place on March 15 from 2:00 – 3:30 pm Eastern.  At a time when clean water agencies are being forced to address air emission issues under the Clean Air Act (CAA) more than ever before, this informative seminar, led by two legal experts on CAA issues, will cover a variety of topics including new rules for sewage sludge incinerators (SSIs), the Greenhouse Gas Tailoring Rule, new Toxics Release Inventory reporting requirements for hydrogen sulfide, and new rules on boilers and engines. All of these air regulations could impact POTWs, and this web seminar will outline what every clean water utility should know.

Register Today!

Registration is $250 for the two-part series, or $150 for an individual seminar.  We invite you to gather your staff together in a group learning environment for these exceptional, high-value seminars.

Energy-Water Nexus

NACWA Obtains Clarification on Status of Biogas from Anaerobic Digestion

In addition to commenting on the proposed revisions to the NHSM rule (see related story above), NACWA’s February 21 comment letter supported EPA’s clarification in the December 23, 2011 Federal Register that the Agency did not intend to change its previous statements and interpretations regarding contained gases.  Background materials associated with revisions to the commercial and industrial solid waste incinerator rules suggested that EPA was changing its interpretation of contained gas, which would have had major implications for the biogas generated during the anaerobic digestion process used to treat biosolids.  In clarifying its position, EPA states in the December 23 proposed revisions, that “the burning of gaseous material, such as in fume incinerators (as well as other combustion units, including air pollution control devices that may combust gaseous material) does not involve treatment or other management of a solid waste (as defined in RCRA section 1004(27).”  Based on this clarification and discussions with EPA staff, NACWA understands that digester gas or biogas generated during the treatment of sewage sludge that is burned for energy recovery and any gaseous material that is flared as an air pollution control measure is not subject to the requirements for combustion or treatment of a solid waste.

NACWA sought more specific clarification on this point last year, prior to this new Federal Register language, and recently received direct confirmation of EPA’s position regarding the regulatory status of biogas in a February 15 policy letter .

Green Infrastructure

EPA Unveils New Green Infrastructure Website, Offers Assistance to Interested Communities

EPA debuted a new, redesigned website this month with information on green infrastructure issues, and also announced the availability of direct assistance from EPA to facilitate the use of green infrastructure to protect water quality.  The new website repackages and expands upon EPA’s previous website to house EPA’s research on green infrastructure and to serve as a clearinghouse for information developed by governmental agencies, academia, non-profits, and the private sector.  The site contains information on green infrastructure publications, tools, and opportunities.

As part of the redesign, EPA is offering technical assistance through EPA contract support to communities interested in pursuing green infrastructure that are located in watersheds/sewersheds with significant water quality degradation associated with urban stormwater.  The total EPA assistance available is approximately $950,000, and will be distributed among 10-20 projects.  The value of the assistance available to each project will be approximately $50,000 - $100,000.  Letters of interest must be sent to EPA by April 6, 2012 - additional information is available on EPA’s website .

Regulatory Policy

White House Updates Website to Allow Greater Access to Federal Rules

Individuals will have greater access to federal rules, including through potential mobile applications for smart phones and other devices, following the White House’s revamping of its website on regulations to make the underlying data more publicly accessible.  The new Regulations.gov allows users to filter rules by date, as well as by issue, for example, "Energy, Natural Resources, and Utilities."  The redesign comes six weeks after White House regulatory czar Cass Sunstein directed agencies to preface complex rules with "straightforward" summaries.

Both moves are part of the White House's effort to simplify federal rulebooks and make the regulatory process more publicly accessible in response to President Obama’s Executive Order 13563 from January 2011 directing federal agencies to improve the regulatory review process.

Security & Emergency Preparedness

NACWA’s Security & Emergency Preparedness Committee Discusses Current State of Water Sector

NACWA’s Security & Emergency Preparedness Committee held a web-based meeting February 23 to discuss issues including cybersecurity, economic consequences of emergencies, and vulnerability assessment tool upgrades.  The Cyber Security Evaluation Tool (CSET) developed by the Department of Homeland Security (DHS) provides a thorough analysis of the security of cyber systems and networks.  The City of Richmond provided an overview of a recent workshop held with DHS staff to use CSET at their wastewater and drinking water utility.  Utility staff gave CSET a very favorable review.  Richmond and the Los Angeles County Sanitation Districts also participated in a pilot test of the EPA Water Health & Economic Analysis Tool (WHEAT) and found that it gave valuable information about the economic consequences of emergencies at their utilities.  Curt Baranowski and John DeGour from EPA’s Water Security Division provided an update on the development of WHEAT and are planning a demonstration of the tool this spring.

The Committee also discussed the potential for upgrading vulnerability assessment tools, such as the NACWA-originated Vulnerability Self-Assessment Tool (VSAT).  The Committee will be asked to provide additional input to NACWA on the importance of upgraded tools to clean water agencies.  In addition, American Water provided a case study on the response of utilities in New Jersey to Hurricane Irene, providing many useful lessons in communication with customers and other agencies – and advance preparations for natural disasters.  The Security & Emergency Preparedness Committee will receive a summary of the meeting by e-mail and will hold another web meeting this summer.

Water Quality

Court Issues Partial Victory in Florida Nutrients Case

A federal court in Florida issued a ruling on February 18 striking down key elements of EPA’s controversial numeric nutrient criteria for the state, while at the same time upholding the Agency’s decision to impose federal criteria in place of existing state standards.

The court’s decision in Florida Wildlife Federation v. EPA to invalidate EPA’s nutrient criteria for flowing streams is an important victory for NACWA’s Florida utility members, which had challenged the Agency’s actions.  The ruling is also consistent with arguments made by NACWA in a brief filed last June that contested the scientific basis for EPA’s nutrient limits.  The court’s decision found that EPA had established the “wrong target” in developing stream limits by focusing on criterion designed to identify any increase in nutrient level, instead of establishing the “right target” of criterion to identify only harmful increases in nutrients.  The court further found that because EPA failed to establish sufficient scientific reasoning for criteria based on any increase in nutrients as opposed to a harmful increase, the overall stream criteria were fatally flawed and could not survive judicial review.  The court appeared, however, to provide EPA with a fairly clear roadmap on how the Agency could fix these flaws, such as providing additional scientific rationale or adjusting the overall baseline criteria target.

On a more disappointing note, the court dismissed all challenges to EPA’s federalization of Florida’s criteria, finding that EPA acted properly in replacing the existing state narrative approach with federal numeric criteria.  This decision runs counter to arguments made by NACWA and others that EPA violated the Clean Water Act and illegally usurped the state’s primary role in setting water quality standards.  NACWA disagrees with this portion of the court’s decision and is concerned about its potential national precedent in other states where EPA may seek to federalize criteria.  NACWA will closely monitor any potential developments regarding this issue, including any appeals that might be filed to this element of the court’s ruling.

State Submits Revised Nutrient Criteria to EPA; NACWA Urges the Agency’s Swift Approval

In a related development, the Florida Department of Environmental Protection (FDEP) submitted revised state nutrient criteria to EPA on February 20, requesting the Agency approve the state plan in place of the contested federal criteria.  EPA has given indications in recent months that it is likely to approve the new state criteria once finalized and withdraw the federal limits, including a November letter where the Agency expressed tentative approval for the state’s draft rules.  NACWA submitted a letter to EPA Administrator Lisa Jackson urging her to expeditiously approve the new Florida rules in their entirety and return control over the criteria to the state level where it belongs.

NACWA Files Comments on EPA Draft Recreational Water Quality Criteria

NACWA expressed general support for EPA’s draft recreational water quality criteria in comments filed February 21 on the Agency’s proposed revisions.  New scientific information led EPA to maintain the level of public health protection established in its 1986 criteria and to retain the current values.  The criteria serve as recommendations to states as they set water quality standards.  NACWA recognized early on that these revisions could have a profound impact on a number of Clean Water Act (CWA) programs and intervened in litigation (Natural Resources Defense Council (NRDC) v. EPA) to ensure that EPA had sufficient time to conduct the studies and collect the data necessary to make sound scientific decisions.

EPA agreed to a very aggressive timetable in settling the litigation, which limited the scope of what the Agency could accomplish.  NACWA believes, however, that EPA’s decision to maintain the current criteria values is supported by science.  Though it expressed support for the criteria, the Association did raise several concerns, including the potential impact of rapid test method results on CWA programs and the need for implementation guidance.  EPA has already faced fierce criticism from the environmental activist community for failing to lower the criteria.  NACWA will continue to underscore, as it did in its comments, that the science cannot support more stringent criteria values.  EPA must finalize the criteria revisions by October.  NACWA will meet with the Agency in the coming months to track the efforts and provide input based on experience and expertise as criteria implementation guidance is developed.

EPA Science Advisory Panel Considers Aquatic Life Impacts of Pesticides

EPA’s Office of Water (OW) and Office of Pesticide Programs (OPP) continued their effort to develop a common methodology for characterizing the effects of pesticides on aquatic life by convening a three-day meeting January 31 – February 2 of the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) Science Advisory Panel (SAP).  Currently, the methods used by OW and OPP to evaluate aquatic life impacts are different, with OPP’s requirements for approving pesticides under FIFRA generally less stringent than OW’s toxicity testing requirements.  While the Common Effects Assessment Methodology being developed by EPA will not make the testing procedures identical, it should make the procedures and analysis of impacts more parallel.  This meeting allowed EPA to present their current analyses of test methods and toxicity data to the FIFRA SAP for review and comment.

The Common Effects Assessment Methodology is important to NACWA Member Agencies because they have little or no control over the pesticides that may contribute to toxicity test failures.  For this reason, NACWA is urging EPA to make certain that the new assessment methodology ensures that OPP’s approach does not cause toxicity to the species used in OW’s aquatic toxicity testing.  NACWA has been following this EPA effort for some time and provided input to the Agency in comments last year.  The Association participated in the meeting to ensure it continues to protect POTWs from bearing the responsibility and cost for pesticide-related issues beyond their control and will notify members when the SAP recommendations are available.  EPA plans to complete the Methodology later this year.