Regulatory Update

Regulatory Perspective

States Continue to be the Driving Force Behind PFAS Regulatory Efforts, Will the Feds Flip the Script?

To date, in the absence of federal action, state legislative and regulatory authorities have largely been left to themselves in addressing PFAS concerns within their borders. But this may soon change.

The U.S. Environmental Protection Agency’s (EPA) Administrator, Michael Regan – hand-picked by the Biden Administration and confirmed on March 10 in a 66-34 vote by the U.S. Senate – is uniquely positioned to tackle this challenging issue with his experience dealing with notable PFAS pollution in the Cape Fear River, North Carolina. As he settles in and starts to make his imprint on EPA, expect federal PFAS regulatory initiatives to accelerate. Here are some of what we are watching on the clean water side:

The conversation over hazardous substance designation is heating up. Whether this will occur through a direct hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), through a characteristic or listed waste under the Resource Conservation and Recovery Act (RCRA), or through a listing as a Toxic Pollutant under the Clean Water Act (CWA) is yet to be determined.

The prior EPA Administration published an Advanced Notice of Proposed Rulemaking (ANPRM) asking whether the Agency should consider these authorities for future rulemaking for PFOA and PFOS, although this ANPRM was ultimately pulled back by the current EPA’s regulatory freeze. Regardless if this ANPRM ever resurfaces, discussions are focused less on if EPA or Congress will act and more on how and when.

Continued scientific research on human health and ecological risk is needed. EPA is currently nearing the end of the problem formulation and scoping stage—the first step of a risk assessment—for understanding PFOA and PFOS risks, if any, in biosolids. Any day now, EPA will be sending its risk assessment modeling approach to the Scientific Advisory Board, and once reviewed, EPA will open a formal notice and comment period.

Also, it is likely we will see something from EPA evaluating the data availability for CWA human health water quality criteria in 2021 and similarly for aquatic life criteria in 2022. These scientific processes are obligatory before any CWA regulatory policy determinations are made.

Monitoring requirements in municipal wastewater National Pollutant Discharge Elimination System (NPDES) permits are coming. In November 2020, EPA released a unanticipated memorandum, Interim Strategy for Per- and Polyfluoroalkyl Substances in Federally Issued National Pollutant Discharge Elimination System Permits, which recommends phased-in monitoring and BMPs be incorporated in federally-issued wastewater and stormwater permits where “PFAS are expected to be present” (emphasis added).

While these recommendations are not binding regulatory requirements and only legally apply where EPA is the permitting authority, it is likely many state permit writers will heed these suggestions and incorporate similar provisions upon NPDES permit renewals.

Analytical accuracy is also a real concern. Currently, there are no EPA-approved CWA analytical methods for monitoring wastewater in surface waters, wastewater, or biosolids, which is problematic given the attention state regulatory authorities are paying towards setting regulatory limits. We expect to see movement here in the coming months as EPA is close to finalizing its direct injection method (SW-846, Method 8327) and is moving to multi-lab validation for isotope dilution for non-drinking water aqueous samples.

Before these analytical methodologies appear in CWA permits, EPA must be transparent and proceed through the public notice and comment process—not merely publish new analytical methods on its website. Consistent and reproducible analytical methods are necessary to ensure confidence in any subsequent regulatory actions.

Needless to say, as the scientific pieces come together and an appropriate regulatory response takes a more definitive shape, expect a great deal of PFAS action at the federal level this year and in the years ahead.

If members have questions on PFAS, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs at 202/533-1839 or Emily Remmel.

Top Stories

NACWA Congratulates EPA Administrator Regan on Confirmation, Looks Forward to Working Closely Together

The U.S. Senate confirmed Michael Regan on March 10 as the newest EPA Administrator in a 66-34 vote. NACWA sent a letter congratulating Mr. Regan on his new role and shared with him our key priority issues.

Regan comes to Washington after serving four years as the secretary of the North Carolina Department of Environmental Quality and is expected to advance many of the Biden Administration’s key environmental priorities including investing in infrastructure, combating climate change, regulating PFAS chemicals, and advancing Environmental Justice initiatives.

NACWA has invited Mr. Regan as the keynote speaker for the upcoming Water Week event on April 27. NACWA looks forward to engaging with Mr. Regan in the months ahead and continuing our long-standing collaborative relationship with the Agency on the critical issues facing the clean water community.

NACWA Weighs-In on Low-Income Water Assistance Program

NACWA sent a letter on March 9 to the Department of Health and Human Services (HHS) with recommendations on how to structure the new Low-Income Household Water Assistance Program. This program was established by Congress at the end of 2020.

HHS has been tasked by Congress with administering the program and distributing the $638 million already appropriated for it. HHS will also use the same program to send out an additional $500 million in aid that is included in the COVID-19 legislation passed by Congress recently. Under the statutory language authorizing the program, HHS is responsible for creating a distribution formula to allocate the funds to states, Tribes and territories, and these grantees will then disperse the funds to utilities. 

NACWA’s letter focuses on the need for HHS to coordinate with EPA and other stakeholders to ensure that the unique needs of the water sector are taken into account in how the program is structured. HHS has significant experience in assistance programs in the energy space but not in the water space, so it is critical that water experts be engaged in the process to ensure the program targets funds to where the greatest need exists. NACWA also makes a number of recommendations for HHS to include in its guidance to states on how to distribute the funds at the local level.

NACWA will continue its engagement efforts with HHS to help structure this new program in a manner that is most efficient for utilities and ensures the funds are directed where they are needed most. 

Members with questions can contact Nathan Gardner-Andrews, NACWA’s General Counsel & Chief Advocacy Officer.

Energy and Resource Recovery

NACWA Asks EPA to Consider Greenhouse Gas Inventory Changes

NACWA submitted comments on March 15 on EPA’s Draft Inventory of US Greenhouse Gas Emissions and Sinks:1990-2019 as part of the public review process, following up on the comments submitted during the expert review period. The annual Inventory provides nationwide estimates for greenhouse gas (GHG) emissions for different sectors, including wastewater treatment, and is intended to be used only for informational purposes.

The wastewater treatment category in the Inventory includes publicly owned treatment works (POTWs), septic systems, and industrial wastewater treatment systems. NACWA has reviewed and commented on the POTW emissions estimates in the Inventory since 2007, recommending revisions to characterize the sector’s emissions more accurately. Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Facilities & Collection Systems

Count of State Wipes Bills Increases; Plastics in Wipes Raises Concerns

After Washington became the first state to enact a wipes labeling law in March 2020, the number of states that are interested in similar laws has increased. NACWA is now aware of six states with active legislation California (AB818), Illinois (SB294), Massachusetts (HD1625), Minnesota (HF914), and Maine (HD1625). 

Washington’s law requires clear “Do Not Flush” labeling on the packages of non-flushable wipes. The Minnesota and Maine bills contain this same requirement and would also establish a flushability standard for wipes labeled “flushable.” The other states are taking Washington’s approach—they do not address the contentious flushability issue and instead focus on the education of consumers with proper labeling of wipes that are not intended to be flushed. Please read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Pretreatment & Pollution Prevention

EPA Collecting Data That May Lead to Effluent Guidelines for PFAS Manufacturers

EPA published an Advance Notice of Proposed Rulemaking (ANPRM) on March 17 to solicit data on per- and polyfluoroalkyl substances (PFAS) in discharges from PFAS formulators and manufacturers, the first step that may lead to effluent guidelines and pretreatment standards on PFAS discharges for these industries.  

The ANPRM provides the data and information on PFAS manufacturers and formulators that EPA has already collected. This data was collected as part of a detailed study through the Agency’s Effluent Guidelines Program of PFAS discharges from multiple industrial categories. EPA requests comments on this information and submittal of any additional information related to PFAS discharges from these facilities. Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Regulatory Policy

Lead and Copper Rule Revision Effective Date Delayed; Round Two of Public Comment Ahead

In a Federal Register Notice from March 12, EPA is delaying the effective date of the Lead and Copper Rule Revisions (LCRR) from March 16, 2021 to June 17, 2021.

The move to delay comes after President Biden’s “Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” directing federal agencies to review certain regulatory initiatives, such as the LCRR.

The LCRR was listed on White House’s short list for agency actions to be reviewed for consistency with the EO and was explicitly included in the administration’s “Regulatory Freeze Pending Review” memorandum directing agency leads to consider postponing effective dates for regulations that have been published in the Federal Register but have not taken effect, like the LCRR.  Please read the full story in the Clean Water Current.

Contact Emily Remmel at 202/533-1839 or Emily Remmel.