NACWA Regulatory Regulatory Update May 2007

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to May 14, 2007. Please contact NACWA’s Chris Hornback at 202/833-9106 or chornback@nacwa.org or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org with any questions or information on the Update topics.

Top Stories

NACWA Initiates Dialogue on Potential Contaminants from Consumer Products
NACWA staff and members of NACWA’s Pretreatment and Pollution Prevention Committee and Emerging Contaminants Workgroup met with other organizations on May 9 to begin a dialogue on the issue of potential contaminants from consumer products. These groups included the Sierra Club, the Product Stewardship Institute, the International Center for Technology Assessment, and the Water Environment Foundation (WEF). A growing number of consumer products use new ingredients or additives that are outside of the traditional regulatory framework, such as soaps containing triclosan, washing machines that discharge silver ions, and fabrics impregnated with copper. These additives may end up in the sewer system and subsequently be discharged to the nation’s waterways or found in biosolids. Some of the additives are newer compounds with unknown environmental and human health impacts, while others consist of chemicals, pesticides, and heavy metals that are known threats and that are regulated under the National Pretreatment Program when discharged from industrial and commercial sources. Since there is no existing way to regulate discharges from residential sources, clean water agencies are increasingly concerned about potential contaminants from consumer products.

Letters and communication from NACWA (http://www.nacwa.org/getfile.cfm?fn=2006-02-14agltr.pdf) and other groups to EPA have already resulted in an announced decision to regulate silver ion washing machines (http://www.epa.gov/oppad001/ion.htm). The consumer products dialogue initiative will allow NACWA and other groups to coordinate efforts to increase awareness of the possible environmental and human health impacts of consumer product additives. The dialogue will include regulatory agencies and the manufacturers and retailers of these products, with a goal of finding ways to prevent potential contaminants from entering wastewater. NACWA will keep members informed about progress made with the dialogue and other consumer products issues.

NACWA Highlights Concerns with White House Drug Policy
On May 2, NACWA sent a letter (http://www.nacwa.org/getfile.cfm?fn=2007-05-02whdpo.pdf) to the Director of the White House’s Office of National Drug Control Policy (ONDCP) detailing several concerns raised by members regarding a set of disposal guidelines (http://www.whitehousedrugpolicy.gov/drugfact/factsht/proper_disposal.html) for unused prescription drugs issued by the ONDCP, in coordination with the Department of Health and Human Services and EPA earlier this year. NACWA’s letter noted that the guidelines do not put sufficient emphasis on the value of local drug take-back programs, many of which have been developed by NACWA member agencies on behalf of their communities. More problematic was the inclusion in the guidelines of a list of drugs that the federal government is recommending should be flushed.

The Food and Drug Administration maintains the list of drugs that it believes should be flushed primarily due to the potential for illegal distribution and use, but NACWA expressed concern that recommending flushing for any drugs could result in an increase in flushing of all drugs, not just those on the list. While acknowledging the public health benefits of ensuring the proper disposal of controlled substances, NACWA expressed concern that federal drug officials are recommending the disposal of certain drugs down the drain at the same time as environmental regulatory agencies with oversight of clean water agencies are measuring these drugs in wastewater effluent and contemplating their options to address this issue. NACWA’s Emerging Contaminant Workgroup will be following up with the ONDCP and the other federal agencies involved in the handling of unused pharmaceuticals on the value of local or regional take-back programs.

NACWA Outlines Concerns with EPA Documents on Climate-Related Water Impacts
On April 27, NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2007-04-27ord.pdf) outlining several concerns and recommending changes to two draft screening assessments released by the EPA Office of Research and Development on the potential impacts of climate change on water quality. The reports, A Screening Assessment of the Potential Impacts of Climate Change on Combined Sewer Overflow (CSO) Mitigation in the Great Lakes and New England Regions (CSO Report) (http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=166365) and A Screening Assessment of the Potential Impacts of Climate Change on the Costs of Implementing Water Quality-Based Effluent Limits at Publicly-Owned Treatment Works in the Great Lakes Region (WQBEL Report) (http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=166366), highlight two of the many potential impacts global climate change may have on the water environment. NACWA commented that both reports should be revised to better characterize the speculative nature of the analyses and more thoroughly outline in the Executive Summaries the numerous limitations and uncertainties associated with the reports’ conclusions.

The CSO Report suggested that due to climate-related changes in precipitation patterns, some CSO long-term control plans may no longer meet the CSO Control Policy. The report further suggested that some communities may want to consider including margins of safety in their planning to account for broader climate changes. Acknowledging the importance of considering how climate change may impact the water sector, NACWA noted that it is premature to recommend any major modifications in long-term control plans given the acknowledged uncertainty in these analyses and the underlying climate models used to conduct them. In fact, one of the CSO analyses indicated that there would be more CSOs in the future using one climate model but fewer CSOs in the future using another. The WQBEL Report suggested that additional treatment may be required in the future to remove certain pollutants if predicted precipitation patterns result in lower base flow conditions. Unfortunately, the report failed to recognize that should such dramatic climate changes occur, we would likely no longer be dealing with the current slate of water quality standards, and predicting whether we could meet standards in the future was somewhat problematic. These reports also received significant attention at the Climate Change Issues Forum during the joint NACWA/Water Environment Foundation (WEF) National Clean Water Policy Forum earlier this month.

Biosolids

New National Survey on Biosolids Use in the U.S. Nears Completion
For the past 18 months, NACWA has been providing input to an EPA grant-funded survey of national biosolids quality and end-use practices conducted primarily by the North East Biosolids and Residuals Association (NEBRA). The preliminary report from the project titled A National Biosolids Regulation, Quality, End Use & Disposal Survey is now available. The report provides an overview regarding biosolids management in the U.S. with additional state-by-state data. NACWA will be submitting comments on the current draft of the report and providing additional feedback to NEBRA as it works to complete the survey report. To download the preliminary report visit www.nebiosolids.org and click on the headline, Biosolids in the U.S. – A New National Report.

Conferences and Awards

Plan Now to Attend NACWA’s 2007 Summer Conference
Join your clean water colleagues July 17-20, 2007 in Cleveland, Ohio for NACWA’s 2007 Summer Conference, Sustainable Infrastructure Choices…Gray, Green, & Everything In Between. The conference program will focus on how sustainable clean water infrastructure can be developed by balancing traditional ‘gray’ infrastructure with new ‘green’ infrastructure approaches. Featured speakers and panelists will examine both the benefits and challenges of balancing gray and green infrastructure in terms of regulatory requirements, economics, and environmental progress. The conference will also include meetings of NACWA’s Standing Committees, the 2007 NACWA Open golf tournament, and a Thursday evening reception at the Rock and Roll Hall of Fame. The hotel registration deadline is June 26, 2007. More information about the conference is now available on NACWA’s Meetings and Conferences webpage at http://www.nacwa.org/meetings/07summer/.

EPA Announces Clean Water Act Recognition Awards
Applications are now available for EPA’s 2007 Clean Water Act Recognition Awards, sponsored by EPA’s Office of Wastewater Management. The awards recognize municipalities and industries for demonstrating outstanding technological achievements or innovative processes in their wastewater treatment and pollution abatement programs. The awards are intended to increase public awareness of contributions of wastewater utilities to clean water and encourage public support of effective wastewater management, biosolids disposal and reuse, and wet weather pollution control. Nominations are due to EPA by June 29, 2007. More information will be available soon on EPA’s website at http://www.epa.gov/owm/intnet.htm.

Facility and Collection Systems

NACWA Green Infrastructure Efforts Lead to EPA Earth Day Event
NACWA participated in a meeting April 25 with EPA staff to plan for further development and implementation of green infrastructure techniques. The meeting represents the first step in implementing the goals outlined in the Statement of Intent on Green Infrastructure that was signed on April 19 at a Pittsburgh Earth Day event by NACWA, EPA Administrator Stephen Johnson, the Natural Resources Defense Council (NRDC), the Low Impact Development (LID) Center, and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA). The Statement calls for “a collaborative effort among the signatory organizations in order to promote the benefits of using green infrastructure,” and outlines a number of steps to be taken in this regard such as development of models for all components of green infrastructure and exploring regulatory incentives for the use of green infrastructure.

NACWA also participated in an April 16 forum with EPA and representatives from the Statement of Support signatory organizations to discuss how the Agency can better encourage the use of green infrastructure in communities across the nation. Additionally, 13 members of the House of Representatives forwarded a letter (http://www.nacwa.org/getfile.cfm?fn=2007-04-17greinltr.pdf) to Administrator Johnson endorsing the Statement of Support and encouraging EPA to establish a strategy for utilizing green infrastructure as a way to reduce stormwater and sewer overflows. Additional meetings are scheduled in the coming weeks on this topic, and NACWA will provide updates on any developments.

Regulatory Policy

Congressional Action Being Consider to Address Regulatory Office Authority
NACWA is closely following the fallout from an Executive Order signed earlier this year that is now drawing fire from at least four Congressional committees over concern that the order gives the White House too much 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 will 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 proposed guidance was designed to ensure consistency in how regulatory guidance is developed. NACWA submitted comments (http://www.nacwa.org/getfile.cfm?fn=2005-12-21cmtsombggp.pdf) in December 2005 that generally supported OMB review of significant guidance documents, but questioned the process for determining what guidance was in fact significant.

Most of the recent Congressional concern on the new order seems to focus on the RPOs and whether legislation is warranted to increase the transparency of their work. While NACWA believes that this new review step might serve to better ensure that regulations are fully reviewed and evaluated for their cost impacts before leaving EPA, it does add yet another opportunity for unnecessary delay and political interference in EPA’s regulatory efforts. NACWA will be following this issue and its implications for ongoing efforts such as the peak flow policy that remains under review at OMB.

Security

GAO Releases Report on Vulnerability Assessment and Chlorine Conversion Costs
On May 1, the Government Accountability Office (GAO) released a report, Securing Wastewater Facilities: Costs of Vulnerability Assessments, Risk Management Plans, and Alternative Disinfection Methods Vary Widely (http://www.gao.gov/highlights/d07480high.pdf) requested by Senator Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works Committee. Several NACWA members were involved in providing GAO with data for the report, which demonstrates the wide range of costs to perform vulnerability assessments and switch to alternative disinfection methods. GAO found that costs to prepare vulnerability assessments ranged from $1,000 to $175,000, and costs to prepare risk management plans ranged from under $1000 to over $31,000. The costs depended mostly on whether the assessment was conducted in-house or performed by a contractor, not on the facility size. Conversion costs ranged from $650,000 to over $13 million for the 38 large utilities interviewed by GAO that converted from chlorine gas to alternative disinfection methods. Most facilities converted to delivered sodium hypochlorite, which was more economical than other methods such as generating sodium hypochlorite on-site or using ultraviolet light. NACWA believes the report demonstrates that a one-size-fits-all approach to security-related issues is not appropriate for publicly owned treatment works because of the unique, site-specific needs of each utility.

Utility Management

NACWA Signs Statement of Support on Effective Utility Management Effort
NACWA and five other associations representing the U.S. water and wastewater sector, in collaboration with EPA, announced the release of a new report, Findings and Recommendations for a Water Utility Sector Management Strategy, on May 8 during the NACWA/WEF 2007 National Clean Water Policy Forum. Designed to advance effective utility management practices, the report culminates a 12-month effort focused on excellence in water and wastewater utility management. The release of the report is accompanied by a statement of support and an action list from the collaborating organizations as well as a fact sheet for utility managers (http://www.nacwa.org/private/umfi.cfm).

Formalized in a joint Statement of Intent in May 2006, the Effective Utility Management Collaborating Organizations – the American Public Works Association (APWA), American Water Works Association (AWWA), Association of Metropolitan Water Agencies (AMWA), National Association of Clean Water Agencies (NACWA), National Association of Water Companies (NAWC), the Water Environment Federation (WEF) and EPA – appointed a steering committee of sixteen water utility leaders from across the country to develop recommendations for a joint water utility sector management strategy applicable to water, wastewater, and combined water/wastewater utilities.

The report’s findings and recommendations provide guidance for optimizing water system management and include the definition of ten attributes of effectively managed utilities and keys to management success, a list of existing resources linked to the attributes, and suggested performance measures to improve utility management. The report’s release was referenced by EPA Administrator Stephen L. Johnson during his remarks at the Policy Forum.

Water Quality

EPA Holds Experts Workshop on Recreational Water Quality Criteria
More than 40 scientists, academics, regulators, and others met at a March 26-30 EPA workshop to begin the process of developing new, scientifically-based recreational water quality criteria that protect human health. The main topics discussed at the workshop, which was not open to the public, were pathogen and fecal contamination indicators, implementation approaches for the new criteria, and assessment of human health risks. EPA hopes to use the feedback from the experts to develop the criteria, which are required by the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act). EPA missed the BEACH Act deadlines for issuing criteria and was sued by the Natural Resources Defense Council (NRDC). NACWA intervened in the case, Natural Resources Defense Council v. EPA (http://www.nacwa.org/private/littrack/#nrdcepa) and will be involved in setting new deadlines that will allow the Agency to develop reasonable criteria.

Charles McGee of Orange County Sanitation District, a NACWA member agency, was the only representative of the municipal clean water community participating in the workshop. A list of all workshop participants is available on NACWA’s website (http://www.nacwa.org/getfile.cfm?fn=Participant_List_Expert_Workshop.pdf). NACWA members can contact Chris Hornback at (202) 833-9106 or chornback@nacwa.org for more information. NACWA will keep members informed about the progress in developing recreational water quality criteria.

EPA Clearinghouse on the Great Lakes Watershed
On May 7, EPA announced the availability of an online resource for information on toxicity data and other supporting documents used in developing water quality standards in the Great Lakes watershed. The Great Lakes Initiative (GLI) Clearinghouse contains information relevant to regulatory and nonregulatory programs. It can be used to help establish water quality criteria, permit discharge limits, total maximum daily loads, remedial action plans, and lakewide management plans within the Great Lakes Basin.

Data in the clearinghouse can be viewed online or downloaded in spreadsheet format. The clearinghouse includes PDF versions of "fact sheets," which provide methodology information on how state agencies and EPA derive criteria and guidance values. The clearinghouse also includes links to GLI-related documents, including Federal Register notices and technical support documents, as well as formulas that allow users to calculate criteria according to GLI methodologies. To access the clearinghouse go to http://www.epa.gov/gliclearinghouse.