Member Pipeline - Regulatory - March 2007 Regulatory Update

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To: Members & Affiliates, Regulatory Policy Committee
From: National Office
Date: March 15, 2007

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to March 15, 2007. Please contact NACWA’s Chris Hornback at 202/833-9106 or or Cynthia Finley at 202/296-9836 or with any questions or information on the Update topics.

Top Story

NACWA Focuses on Climate Change Issues Likely to Affect Clean Water Agencies
Recognizing the growing importance of climate change issues and their likely impact on clean water agencies, NACWA recently renamed its Air Quality Committee as the Air Quality & Climate Change Committee. Several states have already developed, or are in the process of developing, strict regulatory regimes to reduce greenhouse gas emissions, and the U.S. Congress is poised to do the same. Some of the proposed regulations use EPA’s Inventory of Greenhouse Gas Emissions and Sinks as a basis for determining emissions controls, and NACWA’s Air Quality & Climate Change Committee has been reviewing the Inventory estimates of greenhouse gas emissions from wastewater treatment. Wastewater treatment ranked sixth in methane emissions and fifth in nitrous oxide emissions in the most recent estimates, but the Committee believes that conservative factors used in the calculations led to an overestimation of the emissions. The draft 2005 Inventory ( was released for public comment in February, and NACWA will be filing comments on the public review draft to follow up on the Association’s comments ( on the draft for expert review.

Beyond the issue of greenhouse gas emissions, there are critical relationships between potential climatic changes and the management of water and wastewater. EPA’s Office of Research and Development is looking at one of these relationships, conducting a study to determine whether precipitation pattern changes related to climate change may affect ongoing efforts to reduce combined sewer overflows (CSOs). Many communities are already looking beyond greenhouse gas controls and are developing plans to adapt to potential climatic changes, such as changes in precipitation quantity and intensity, water availability, and sea or lake elevations. Even clean water agencies that have not taken explicit efforts to deal with climate change may have practices that decrease greenhouse gas emissions, such as the capture and reuse of methane gas, which prevents the release of methane and decreases a treatment plant’s energy consumption. These types of activities at clean water agencies could receive support from Congress as part of a climate control legislative package. NACWA will be an active participant in the debate on climate change to ensure that the interests of the clean water community are voiced.

To help plan its future activities on issues related to climate change, NACWA requested input from its public agency members in a brief survey ( If your agency has not yet completed a survey, you may still submit your responses. NACWA will provide members with a summary of the survey responses and use the results to plan its advocacy efforts.

Conferences and Webcasts

2007 NACWA/WEF National Clean Water Policy Forum Registration Now Available
The preliminary agenda and online registration are now available on NACWA’s Conferences and Meetings webpage ( for the joint NACWA/Water Environment Federation (WEF) National Clean Water Policy Forum, May 6-9, at the Renaissance Washington Hotel in Washington, D.C. With invited speakers and guests including EPA Administrator Stephen Johnson and Senate Environment & Public Works Committee Chair Barbara Boxer (D-Calif.), the Policy Forum will provide unparalleled insight into national policymakers’ perspectives on environmental issues that will affect the entire nation, from clean water infrastructure funding, climate change, and sewer overflow control to farming and nonpoint source concerns. In addition to new leadership in Congress, the Clean Water Act turns 35 this year, offering an excellent opportunity to examine whether the current law can meet 21st century challenges and how the 110th Congress can help chart a new path on water quality issues.

On the morning of Wednesday, May 9, the Technical Roundtable Breakfast will once again give meeting participants a unique opportunity to meet with key EPA officials and discuss issues such as wet weather, biosolids, utility management, and climate change. NACWA also urges utility leaders to join us at the Policy Forum and to take part in the first Clean Water Utility Executives Summit. This Summit, scheduled for the afternoon of May 7, will bring together utility executives from across the country to engage in a provocative, facilitated dialogue on the past, present, and future of the clean water community specifically, and water sector organizations as a whole. Again, agenda and registration information is now available on NACWA’s website (, so register today!

NACWA and Wet Weather Partnership to Host 2007 CSO Workshop
NACWA and the Wet Weather Partnership, in cooperation with EPA, are holding the fifth annual CSO Workshop April 26-27 at the Drake Hotel in Chicago. This year’s Workshop will highlight key strategies and developments through case studies from communities nationwide, which are leading the effort to implement and comply with the National CSO Control Policy. Registration information ( is available on NACWA’s website. Each year the Workshop sells out, so register now!

EPA to Host Free Webcast on CSO Control Policy
EPA’s Office of Wastewater Management is hosting a two-hour audio Webcast on March 21 that will provide an overview of the Combined Sewer Overflow (CSO) Control Policy and discuss the roles of permittees, permitting and enforcement authorities, and state water quality standards authorities. The Webcast will cover the fundamentals of the CSO Control Policy and is described by EPA as valuable for those individuals new to the regulatory side of CSO control and as a good refresher on the topic for others. Advance registration is required. Visit EPA’s website ( for more information and to register.

Facility and Collection Systems

NACWA Criticizes EPA’s Wet Weather Enforcement Priorities
NACWA submitted comments ( on February 28 criticizing EPA’s proposed plan to once again target combined and sanitary sewer overflows (CSOs and SSOs) and stormwater discharges as enforcement priorities. NACWA’s comments noted that the Agency’s insistence on targeting municipal wet weather flows for more aggressive enforcement is actually hindering efforts to improve water quality. For example, EPA’s focus on eliminating all SSOs has forced many municipalities to spend disproportionate amounts of money chasing a technically unachievable goal while neglecting more environmentally beneficial projects. While EPA enforcement officials have explored using watershed needs as a means of prioritizing spending in the context of a few consent decrees, the vast majority of enforcement actions require municipalities to eliminate all SSOs, regardless of their impact relative to other sources of pollutants in the watershed. The new priorities would remain in affect until 2011. NACWA is currently working on several efforts to enable municipalities to take a more integrated and balanced approach to making further water quality improvements, which will be detailed in an upcoming Regulatory Alert and Regulatory Update.

NACWA Urges California Board to Reconsider Its Order on Peak Excess Flow Facilities
NACWA asked the California State Water Resources Control Board (Water Board) to reconsider its permit requirements for the East Bay Municipal Utility District’s (East Bay MUD) peak excess flow treatment facilities (PEFTFs), which currently provide primary treatment and disinfection to peak flows. Although EPA has worked on a regulatory framework for PEFTFs in the past, it has never released a final policy for the facilities and the permitting requirements for PEFTFs are unclear. EPA approved East Bay MUD’s PEFTFs without secondary treatment in 1986 and continues to approve PEFTFs as part of a comprehensive approach to wet weather flows in other federal consent orders. The Water Board, however, declared in its draft order that East Bay MUD’s PEFTFs are publicly owned treatment works (POTWs) that must meet the secondary treatment standards of the Clean Water Act. NACWA’s February 20 comments ( urged the Water Board “to withdraw its proposed order, and to instead work collaboratively with East Bay MUD and other California dischargers to achieve environmental progress.” NACWA’s letter explained that “the infrequent treatment and discharge of extreme peak flows from PEFTFs may provide more effective treatment than stressed biological plants under peak flow conditions, and can protect the efficiency and stability of biological plants.”
NACWA will remain engaged in this issue and continue to advocate for consistent regulations for handling wet weather flows.

NPDES Permit Issues

Supreme Court Declines to Review Interbasin Water Transfer Case
The U.S. Supreme Court announced February 26 that it will not review an appeals court decision, City of New York v. Catskill Mountains Chapter of Trout Unlimited, dealing with interbasin water transfers. The U.S. Court of Appeals for the Second Circuit held that the New York City Department of Environmental Protection (NYCDEP), a NACWA member agency, must obtain a NPDES permit for transfers of natural, untreated water between two of its reservoirs. In a January 26 brief (, NACWA supported NYCDEP’s request that the Supreme Court review the case. The Supreme Court’s refusal to hear the case puts an even greater onus on EPA to clarify the appropriateness of NPDES permits for water transfers in its forthcoming water transfer rule. NACWA will continue to work with NYCDEP and other members on this issue and will update members when EPA’s transfer rule is released.

NACWA Comments Oppose EPA’s Proposed Permit Fee Rule
NACWA submitted comments ( on March 2 opposing EPA’s proposed rule on National Pollutant Discharge Elimination System (NPDES) permit fees. The proposed rule would encourage states to fund more of their NPDES programs through user fees from permit applicants. States would be eligible for additional federal money from the Section 106 grant program if at least 75 percent of their NPDES program funding came from user fees. NACWA has worked with a coalition of state regulatory agencies and other regulated entities to oppose the rulemaking. The coalition met with representatives from the offices of Senators James Inhofe (R-Okla.), Hillary Clinton (D-N.Y.), Richard Durbin (D-Ill.), and Ron Wyden (D-Ore.) to explain concerns about the proposal, which led to a letter from a bipartisan group of nine Senators asking EPA to reconsider moving forward with the rule. NACWA also spoke against the proposal at an EPA public meeting.

NACWA’s written comments, which were developed with members’ input, outlined concerns about the financial impacts and EPA’s justification for the rule. Although EPA believes that the permit applicants are the beneficiaries of the NPDES permit program and should therefore pay for the majority of the program, NACWA believes “that it is the public at large – and not the individual permit holders – that benefit from the permitting program and the cleaner, healthier waters the program seeks to ensure.” NACWA is also concerned that the proposed rule “will serve as a prelude to cutting Section 106 funds while simultaneously increasing the regulatory burden placed on state and local governments.” NACWA encouraged EPA to withdraw the proposed rule and to work with states and regulated entities to find an effective way to fund the NPDES permitting program. NACWA will continue to follow this issue and continue to work with congressional staff on potential legislation to block implementation of the rule.

Pretreatment & Pollution Prevention

NACWA Supports EPA Effluent Guidelines Plan Arguments Before Appeals Court
NACWA argued in support of EPA’s effluent limitation guidelines (ELG) program before the U.S. Court of Appeals for the Ninth Circuit on February 13 in Our Children’s Earth Foundation (OCEF) v. Environmental Protection Agency (EPA). In 2005, a district court decided that EPA has significant discretion in implementing the ELG program, and that the Agency is implementing it properly and consistently as intended by Congress. OCEF is appealing this decision, arguing that EPA must conduct a substantial review of the technology underlying each guideline every year. NACWA appeared before the Court of Appeals as an intervenor in the case, supporting the district court’s decision in favor of EPA. NACWA emphasized to the court that 30 years of case law and the legislative history of the Clean Water Act (CWA) support EPA’s recent ELG program actions. The three-judge panel focused on the language of the CWA and whether EPA's duty to “review” ELGs every year included a non-discretionary duty to evaluate the details of each ELG. A decision from the court is expected in the coming months, and NACWA will notify members when the court announces its decision. More information on this case may be found on NACWA’s Member Pipeline (, and an update about the ELG program is contained in a recent Regulatory Alert (

EPA Issues Model Pretreatment Ordinance Incorporating “Streamlining” Revisions
The new EPA Model Pretreatment Ordinance is available on EPA's website ( pretreatment_model_suo.pdf). This Model Ordinance incorporates provisions from the 2005 "Streamlining" revisions to the Pretreatment Regulations and replaces the June 1992 Model Ordinance. The Model Ordinance is intended as a guide for municipalities that are adopting new provisions or revising provisions of local law for implementing and enforcing a pretreatment program. It also explains options available to municipalities and allows for customization according to state law and conditions at each POTW. EPA reminds POTWs that any changes to their pretreatment ordinance are modifications to their approved pretreatment programs and must be submitted to their approval authority.

White House Releases New Policies for Handling Prescription Drugs
The White House’s Office of National Drug Control Policy released new guidelines for the disposal of prescription drugs on February 20 ( Designed to help combat the growing illegal use of prescription drugs in this country, the new guidelines outline several disposal methods including one that instructs citizens to flush prescription drugs down the toilet only if the accompanying patient information specifically indicates that it is safe to do so. While it is not clear which prescription medications might contain such an instruction, the guidelines were released jointly with EPA and were “designed to reduce the diversion of prescription drugs, while also protecting the environment.” NACWA’s Pretreatment and Pollution Prevention Committee and Emerging Contaminants Workgroup have been closely tracking local and national efforts to establish take back programs for unused pharmaceuticals. The new guidelines encourage citizens to take advantage of these programs where available. NACWA is continuing its efforts to foster better communication among federal agencies on the issue of emerging contaminants and these new guidelines appear to be a step in the right direction.


Pandemic Flu Preparedness Guides Released; POTW Workers Receive Vaccination Priority
Two reports were released in February that will help publicly owned treatment works (POTWs) plan for an influenza pandemic. NACWA attended a briefing on the U.S. government’s influenza pandemic mitigation strategy, which is detailed in a report, Interim Pre-pandemic Planning Guidance: Community Strategy for Pandemic Influenza Mitigation in the United States – Early, Targeted, Layered Use of Non-Pharmaceutical Interventions (, issued by the Centers for Disease Control and Prevention (CDC). Additional planning guidance for businesses is contained in a report from the Occupational Safety and Health Administration (OSHA), Guidance on Preparing Workplaces for an Influenza Pandemic (

An earlier report ( by the National Infrastructure Advisory Council (NIAC) categorized 608,000 water and wastewater treatment employees as Tier 1 critical employees and recommended to the Department of Homeland Security (DHS) that they be given priority for vaccinations in the event of an influenza pandemic. Although a vaccine is the most effective method for containing an influenza pandemic, it is not likely to be immediately available for a particular influenza virus or in sufficient quantities. Therefore, other non-pharmaceutical interventions will be required to control an outbreak. The CDC report emphasized “social distancing,” or minimizing contact between people, as the best intervention method. To accomplish this, schools and daycare centers will be closed for four to 12 weeks in the event of a pandemic, requiring many working parents to stay at home with their children. Businesses should plan for high rates of absenteeism resulting from school closures and employee illness. NACWA will keep members informed about additional guidelines and strategies for dealing with a potential influenza pandemic as they become available.

EPA's Water System Materials Disposal Decision Support Tool Available
The most recent version of EPA’s Water System Materials Decision Support Tool (DST) includes a new tool, the Water Supply Distribution System and Wastewater Treatment Plant Decontamination Disposal DST. The new tool addresses disposal requirements for water and wastewater systems that have been subjected to chemical or biological contamination. It contains technical information, regulations, and guidance to ensure safe and efficient removal, transport, and disposal of contaminated materials. The tool is useful for planning purposes, as well as after a contamination incident, with explanations of various disposal options. More information about the tool is available online at

Water Quality

NACWA Requests EPA Review of Fabrics Containing Copper as a Biocide
NACWA asked EPA, in a February 15 letter (, to review fabric products containing copper as a biocide to inhibit the growth of odor-causing bacteria and fungi. The laundering of these fabrics may cause copper particles to be released into the sewer system, ultimately leading to higher copper concentrations in wastewater effluent. NACWA asked EPA to consider registering these products under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in order to ensure a thorough review of the environmental impact of the products. The copper-containing fabrics are examples of the growing number of household products containing new “ingredients” that may end up in the sewer system and negatively affect water quality. Last year, NACWA requested that EPA review washing machines that release silver ions as a disinfectant, and EPA, according to quotes from Agency officials in media accounts, will be requiring registration of the machines as a pesticide ( EPA’s Office of Pesticide Programs (OPP) has indicated that they are looking at licensing pesticides that are used as indoor antimicrobials, recognizing that the antimicrobials may pass through publicly owned treatment works (POTWs) and end up in receiving waters and biosolids. The OPP hopes to work with EPA’s Office of Water to determine the best policy for regulating antimicrobials. NACWA’s Pretreatment and Pollution Prevention Committee and Emerging Contaminants Workgroup are addressing the issues of contaminants from consumer products, and NACWA will keep members informed of new developments in this area.

NACWA’s Comments Reflected in Release of Copper Criteria
EPA announced the availability of its 2007 revised freshwater aquatic life criteria for copper on February 22 ( The criteria were updated to reflect the latest scientific knowledge and now include the biotic ligand model (BLM) as a component of the criteria derivation procedure (replacing the old hardness-dependent criteria). Consistent with NACWA’s comments from 2004 (, EPA has only revised the freshwater criteria. EPA’s notice states that the BLM requires more development before it is suitable for use to evaluate saltwater data and that the Agency is not finalizing the proposed revisions to the saltwater criteria. NACWA supports use of the BLM, developed through a Water Environment Research Foundation (WERF) project, and recommended in its comments to EPA that the Agency delay its revisions to the saltwater criteria until use of the BLM for saltwater can be evaluated. The criteria document, a fact sheet, and a soon to be released list of frequently asked questions are available on EPA’s website (

EPA Poised to Revise Ammonia Criteria; NACWA to Meet with EPA
EPA appears ready to revise its aquatic life criteria for ammonia. Since announcing that it would reevaluate the criteria in July 2004, EPA has worked to collect additional data, validate a new test protocol for assessing impacts on juvenile mussels, and conduct new studies to further document effects on mussels. NACWA’s September 2004 comments on the potential revision ( were critical of the new mussel data due to the lack of a standardized test protocol and the lack of understanding regarding the behavior of early life stages of mussels in a laboratory environment. EPA’s notice from 2004 suggested that EPA may explore the use of site-specific criteria and apply any new criteria for ammonia to only those waters where mussels are present. NACWA will meet with EPA later in March to be briefed on the new data and learn what EPA’s next steps are, and will update the membership with any new information.

EPA Finalizes New, Updated Analytical Methods
On March 12, EPA published in the Federal Register ( a final rule promulgating several new and updated Clean Water Act analytical methods. Among them was a new test method for mercury, Method 245.7, which NACWA has advocated for since the late 1990s. The rule also adds to the list of EPA-approved test methods several new vendor-developed methods and EPA and voluntary consensus standard body (VCSB) methods, updates versions of currently approved methods, and withdraws outdated methods, among other changes. Also consistent with NACWA comments, EPA delayed taking action on the Microtox test method (for acute whole effluent toxicity) to allow more time to evaluate the data regarding use of the method. The rule is effective April 11, 2007.