Member Pipeline - Regulatory - July 2007 Regulatory Update

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To: Members & Affiliates,
Regulatory Policy Committee
From: National Office
Date: July 11, 2007

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to July 11, 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 Stories

NACWA Meets with EPA on Financial Capability Issues
NACWA met with Jim Hanlon, Director of EPA’s Office of Wastewater Management, on June 18 to discuss the clean water community’s concerns with the Agency’s current approach to conducting financial capability assessments. NACWA provided an overview of its Targeted Action Fund (TAF) project to develop guiding principles on what should be considered when evaluating whether a community can afford a particular water quality-related program. Currently, local conditions, like poverty rates and a community’s economic outlook, are only included as part of a broad grouping of “additional considerations.” They are not included in the scoring process, which relies heavily on median household income, and have historically not been a factor in making final determinations on what is affordable.

NACWA and EPA also discussed the draft report from EPA’s Environmental Financial Advisory Board (EFAB), which closely mirrored some of the approaches taken in NACWA’s guiding principles. While EPA seems comfortable with some of the EFAB recommendations, NACWA does not anticipate that the Agency will make any major changes to its existing guidance and instead will likely make some minor changes to ‘freshen’ the concepts and assumptions that have changed since the document was issued in 1997. A new policy issued by the White House’s Office of Management and Budget (OMB), indicating that OMB will review significant guidance documents developed by EPA and other federal agencies, appears to be a major consideration for EPA and may impact the extent of any revisions to the financial capability guidance (see related story under “Guidance Review”). NACWA’s work on its guiding principles is nearly complete and the final document will be made available to the membership soon. The workgroup that has overseen the development of the principles will be preparing some additional text to better explain how the principles and associated materials may be used by individual utilities.

Nutrient Issues Back in the Spotlight with EPA Memo, Science Advisory Board Report
NACWA continues to review a May 25 memo ( from Ben Grumbles, EPA’s Assistant Administrator for Water, which attempts to accelerate the development of numeric nutrient criteria by the states. The memo notes that state progress has been ‘uneven’ since the Agency issued its last policy statement on the issue in 2001 and expresses the Agency’s commitment to ‘accelerating the pace’ for making progress. NACWA is most concerned that this latest push on the states will force some to abandon their sound, scientific approaches to criteria development and adopt the federal default criteria.

Following on the heels of this new policy memo, the Agency’s Science Advisory Board (SAB) is now preparing to release a draft report on the Gulf of Mexico hypoxia problem. The report recommends, among other things, nutrient reductions of 40-45% and wastewater treatment plant upgrades to achieve limit of technology levels for nitrogen and phosphorus. While there is no regional regulatory framework that will allow for the imposition of these types of basin-wide requirements, the recommendations will likely carry significant weight at EPA, among state regulators, and in Congress. The report’s recommendations specifically discuss controls for the major treatment plants (over 1 MGD) in the Mississippi-Atchafalaya River Basin (MARB), which would include plants discharging to the Ohio, Missouri, Platte, Arkansas, and Tennessee river systems.

In the draft report that NACWA reviewed, the Panel recommends nitrogen (N) reductions of at least 45% and phosphorus (P) reductions of at least 40%. The report states that:

[S]ewage treatment plants and industrial dischargers represent a more significant source of N and P in the MARB than was originally identified…. They may offer some of the most certain short-term and cost-effective opportunities for substantial nutrient reductions. Based on these findings, the Panel recommends the following: MARB sewage treatment plant upgrades to achieve total N concentrations of 3 mg/L and total P concentrations of 0.3 mg/L; industrial reviews to identify cost effective opportunities for nutrient reductions; and consideration of nutrient concentrations or loading limits in permit renewals for major sewage treatment plants and selected industrial facilities in the MARB.

NACWA will prepare comments on the draft report when it is released for public comment. The draft version that NACWA reviewed is available on the SAB’s website ( Additionally, if members are commenting on this report, please forward these comments to Chris Hornback at

Air Quality and Climate Change

NACWA Meets with EPA on Climate Change
NACWA, along with several other state and local stakeholders, participated in a June 14 listening session with Deputy Assistant Administrator for Water Michael Shapiro to discuss EPA’s ongoing work to develop a strategy on climate change and its potential impacts on water resources. The Office of Water plans to release its draft strategy for public comment later this summer. NACWA expects the draft strategy to address all facets of the climate change issue, including efforts to reduce greenhouse gas emissions from the water sector and the potential impacts of climate change, such as rising sea levels and changes in precipitation patterns, on water resources. During the listening session, many stakeholders urged EPA to recognize the many existing challenges facing the water sector and to set realistic goals for taking action on climate change issues based on sound, scientific data and climate models.

Conferences and Awards

Registration Still Available for NACWA’s 2007 Summer Conference
There is still time to register online or by fax for NACWA’s 2007 Summer Conference, Sustainable Infrastructure Choices…Gray, Green, & Everything In Between, which will be held July 17-20 in Cleveland, Ohio. On-site registration will also be available beginning at 8:30 am on Tuesday, July 17. Registration numbers are strong and the conference promises to provide an excellent forum for discussing green infrastructure options for the clean water community. Visit NACWA’s website ( for registration instructions, as well as information on hotel reservations and transportation options. The conference program and details about additional conference activities can also be downloaded from the website.

Emerging Contaminants

NACWA Considers Weighing in on Sierra Club Petition
NACWA’s Emerging Contaminants Workgroup is reviewing a recent petition from the Sierra Club and several other stakeholders that seeks EPA action under the Toxic Substances Control Act (TSCA) to address concerns about nonylphenol ethoxylates (NPE) in detergents. A recent EPA effort seeks to encourage manufacturers of NPE-based detergents to voluntarily phase out its use, but the Sierra Club and its co-petitioners are seeking more formal regulatory action under EPA’s TSCA authority. While NACWA has major concerns with some of the assumptions in the petition, the basic premise of the petition, that EPA and other federal agencies should control these and other emerging contaminants at the source rather than in a clean water agency’s discharge, is consistent with the Association’s advocacy efforts on the issue. NACWA’s next steps will be dictated by EPA’s response to the petition. NACWA will keep the membership apprised of any developments on this issue.

Facility and Collection Systems

Inflow and Infiltration Information Available in WEF Private Property Virtual Library
NACWA members dealing with infiltration and inflow (I/I) issues from private laterals may be interested in a new virtual library being offered by the Water Environment Federation (WEF). The recently launched online library lets utilities compare what they are doing to control I/I from private laterals to other communities from across the country ( The Water Environment Research Foundation (WERF) is assisting WEF in the continued collection of information on private lateral programs and on conveyance system issues areas. NACWA’s Facility and Collection System Committee will consider a TAF request when it meets in July for a related effort to explore how large utilities are establishing agreements with satellite communities to address collection system issues such as excessive I/I.

Guidance Review

Congress Takes Action to Address Regulatory Office Authority
Congress has now taken initial steps to limit implementation of an Executive Order signed earlier this year that gives the White House extensive control over EPA and other federal agency rulemaking activity. On January 18, 2007, President Bush signed Executive Order 13422, which, in part, requires the placement of an administration-selected official or regulatory policy officer (RPO) at each federal rulemaking agency. The officers would have the authority to review and approve all major rulemaking activity at the agency. The Executive Order also included implementation of provisions from a proposed policy on ‘good guidance’ that was released for comment by the White House’s Office of Management and Budget (OMB) on November 23, 2005. The U.S. House of Representatives voted on June 28 to bar OMB from using funds to enforce the controversial executive order. First offered as an amendment by Reps. Brad Miller (D-N.C.) and Linda Sanchez (D-Calif.), the provision was attached to the fiscal year 2008 financial services spending bill, which includes White House offices such as OMB. The House agreed to the amendment on a voice vote before approving the overall bill, 240-179. There is no word yet on whether the Senate will approve a similar provision and the President will likely be inclined to veto such a bill.


Metrics Workgroup Focuses on Chlorine Gas
During a June 19-20 meeting of the Critical Infrastructure Partnership Advisory Council (CIPAC) Metrics Workgroup, Cynthia Dougherty, Director of EPA’s Office of Ground Water and Drinking Water, asked the Workgroup to consider developing a metric for chlorine gas safety. The CIPAC Metrics Workgroup was chartered by the Water Sector Coordinating Council (WSCC) and Government Coordinating Council (GCC) to develop a national system for measuring the security progress of the water sector. The measurement system will rely on anonymous, voluntary reporting by drinking water and wastewater utilities. NACWA is part of the CIPAC Metrics Workgroup, along with representatives from other associations and from water and wastewater utilities.

With a chlorine gas metric, EPA would like to show that the water sector has considered the safety of chlorine gas use compared to alternative disinfection methods and have made their chlorine gas supplies secure if conversion to an alternative was not deemed feasible. EPA is concerned that regulations may be forced onto the water sector, including potential requirements for conversion from chlorine gas to alternative disinfection methods, without such a metric. Although the water sector is currently exempt from the Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards that took effect June 8, 2007, DHS Secretary Michael Chertoff warned water sector utilities on June 12 that:

"We [DHS] do not regulate it [chlorine gas]. . . . We may not at this point have the authority to regulate them [water and wastewater plants], but at a minimum we can set out, and we've communicated this, the kinds of standards that these wastewater and water treatment plants should put into effect to make sure that these dangerous chemicals they have on site are not stolen. Because again, unfortunately, if you look over to Iraq, you're going to see these kinds of chemicals wind up in improvised explosive devices.

"And so I don't want – for those of you who are not subject to regulation, I don't want you to breathe a sigh of relief like we're off the hook. You're on the hook, because you're going to have to do this yourselves until the time comes along that regulatory authority to address these is given to us or to some other agency. . . . Wholly apart from regulation, the consequences could be severe, and I'm quite sure those of you who have lawyers, and you probably all do, can ask your lawyers to develop a very vivid picture of what life would be like if it turned out someone who was unregulated was nevertheless negligent with respect to securing these dangerous chemicals. Enough said."

More than 300 water and wastewater utilities currently using chlorine gas have already ordered the Chlorine Gas Decision Tool that was developed by NACWA in partnership with DHS to help utilities conduct evaluations of chlorine gas safety. The CD-based tool allows utilities to generate a quick but accurate assessment of their disinfection alternatives. Available on NACWA’s website (, the tool and the information it generates may prove critical in demonstrating the industry’s ongoing commitment to explore alternatives.

The CIPAC Metrics Workgroup is considering the request from EPA and will formulate this and all other metrics by the end of September. Voluntary and anonymous reporting on the metrics by water and wastewater utilities is expected to begin in early 2008. NACWA will work to keep unnecessary and duplicative security regulations from being imposed on the water sector and will keep the membership informed of further developments on this issue.

Water Quality

Report from EPA Recreational Water Quality Criteria Experts Workshop Released
The proceedings from the March 2007 EPA workshop on the development of new, scientifically-based recreational water quality criteria to protect human health were released on June 15 ( The report summarizes the experts’ findings in seven topic areas and outlines near-term research needs that could be accomplished in two to three years to support development of new or revised criteria by 2012. From a preliminary review of the report, NACWA has identified several key discussions recognizing the limited usefulness of single sample maximum values for certain Clean Water Act uses and the implementation realities of recreational water quality criteria, including a discussion of the need for different criteria for wet weather flow regimes (i.e., changes in the criteria when a use is not taking place, like following a heavy rainfall). While EPA has made it clear that the experts’ report does not reflect Agency policy, the feedback from the experts will likely be a major consideration as EPA continues to develop the new recreational water quality criteria mandated by the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act).

EPA is currently involved in litigation, Natural Resources Defense Council (NRDC) v. EPA, regarding its failure to establish these new recreational water quality criteria. This case is currently focused on how much time EPA will be given to meet its BEACH Act obligations. NACWA, as an intervenor in the case, participated in the depositions of key EPA witnesses on July 2, with more depositions scheduled for later in July. More information can be found on NACWA’s Litigation Tracker at

NACWA Reviewing New EPA Guidance on “Daily” TMDLs
EPA recently released a new technical document, Options for the Expression of Daily Loads in TMDLs (, intended to provide technically sound options for developing daily load expressions in total maximum daily loads (TMDLs) calculated using allocation timeframes greater than daily (e.g., annual, monthly, seasonal). The document follows up on a November 2006 guidance memorandum which recommends that all TMDLs and associated allocations include a daily time increment in conjunction with other appropriate temporal expressions that may be more appropriate for meeting the relevant water quality standard. The memorandum and the new technical document were developed in response to the April 2006 ruling by the U.S. Court of Appeals for the D.C. Circuit that TMDLs must have a daily load component.

The document outlines an approach in which TMDLs with longer allocation timeframes should contain three loading numbers: (1) the long-term target, expressed in kg/year or kg/month; (2) a daily "average" load, based on dividing the long-term target by 12 for monthly targets or 365 for annual targets; and (3) a daily maximum load, based usually on applying a statistical technique to the daily average load. The draft gives several examples of how these loadings could be calculated and other examples are provided in Appendix A of the draft, which discusses seven different TMDLs and how daily loads were calculated for each. Also, the draft provides a detailed explanation of the considerations that a state should use in selecting the appropriate daily load expression for a specific TMDL. EPA provides four matrices to show how the choice of daily load option can be affected by four variables: source type, critical condition, source behavior, and waterbody type.

Although this document is a draft, EPA intends that TMDL practitioners will make use of the technical information in developing TMDLs and provide feedback on the approaches as a result of their experience. Comments are due by February 1, 2008, but NACWA will likely submit any comments before February given EPA's intent to use this guidance immediately. NACWA invites members to review the document and submit comments to Chris Hornback, NACWA at