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Regulatory Update

May 2022 Regulatory Update

May 31, 2022

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2022 Regulatory Update.

NACWA Regulatory Perspective

After a two-year hiatus due to the pandemic, NACWA held its annual Pretreatment Workshop in person May 18-20 in Nashville, with an optional day of training on May 17.  

Although NACWA hosted virtual Pretreatment Events in 2020 and 2021, the virtual format simply does not compare to gathering in person, with the energy and enthusiasm of the participants easily felt in Nashville.   

Over 180 people attended the Workshop, which was close to the pre-pandemic attendance in 2019. But the most remarkable aspect of the Workshop participation this year was the number of first-time attendees.  Over three-fourths of the participants were attending the Workshop in person for the first time, with most of these participating in the Pretreatment Virtual Events over the last two years.   

Many of the first-time attendees are new to the pretreatment field, and they appreciated the opportunity for training provided by the Workshop and the three different training courses available prior to the Workshop. In addition to the presentations during the Workshop, roundtable sessions allowed small group discussion based on different pretreatment topics and geographic areas. This networking and information exchange is so important, since newer pretreatment professionals can ask specific questions and learn from those who are more experienced in the field. 

Another important aspect of the Workshop is the variety of affiliations of the participants. Although the majority of participants are from utilities, there were also many consultants attending, along with representatives from EPA Headquarters and 24 state pretreatment staff. The variety of participants, from all aspects of the pretreatment program, adds to the discussion at knowledge sharing at the Workshop. 

Given the success of the Pretreatment Virtual Events in 2020 and 2021, as well as the exposure to the NACWA Pretreatment Workshop that they helped provide to people that had not attended in person previously, we are exploring options for continued pretreatment virtual programming and training. Virtual events should supplement, but not duplicate, the in-person Workshop, giving opportunities for both pretreatment professionals that can travel to the Workshop and those that cannot.  

The NACWA Pretreatment & Pollution Prevention Committee will be discussing the optimal combination of in-person and virtual events.  If you have suggestions, we would like to hear them! Please feel free to contact NACWA with your ideas. 

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

NACWA submitted comments May 20 to U.S. EPA regarding its proposed Build America, Buy America (BABA) waiver for the Water Infrastructure Finance and Innovation Act (WIFIA) program. NACWA strongly supports this waiver, which would exempt from BABA those projects seeking WIFIA funding that initiated design planning prior to the date BABA went into effect, which was May 14, 2022.  

As previously reported, the BABA requirements that passed into law as part of the Bipartisan Infrastructure Law (BIL) significantly expand prior domestic procurement requirements. In addition to American Iron & Steel, domestic procurement rules also now apply to manufactured goods and construction materials seeking funding from any federal infrastructure investment program. The objective of BABA is to help advance domestic manufacturing and supply chains and help ensure federal investments support American jobs.  

The proposed waiver for WIFIA takes a flexible approach to “grandfathering in” projects that were in the planning stages before BABA went into effect, recognizing that without an exemption, utilities may be forced to go back to the drawing board on their projects or face potential delays and cost increases they could not have foreseen.  

In its letter, NACWA encouraged EPA to be flexible in the types of documentation or steps that constitute design planning initiation, such as the date of execution of a bid or a contract for design planning services. NACWA also urged EPA to provide a grandfathering in period for the State Revolving Funds (SRFs). EPA has indicated that guidance on the SRFs should be out soon and NACWA believes the WIFIA waiver signals that EPA will be responsive to concerns about ensuring the SRFs have time to adapt without delaying projects. 

Contact: Kristina Surfus at 202/833-4655 or Kristina Surfus

The U.S. Department of Justice (DOJ) on May 5 announced a series of actions aimed at addressing environmental justice.  

In addition to launching a new Office of Environmental Justice (OEJ), DOJ also issued a comprehensive environmental justice enforcement strategy, as well as an interim final rule restoring the use of supplemental environmental projects (SEPs) in settlement actions subject to certain new guidelines.  

The OEJ, which will be housed within DOJ’s Environment and Natural Resources Division (ENRD), will be led by Acting Director Cynthia Ferguson and guided by the new enforcement strategy.  

That strategy, which was developed by ENRD in partnership with EPA’s Office of Enforcement and Compliance Assurance (OECA), is designed to ensure that DOJ is using all available legal tools to promote environmental justice in both civil and criminal enforcement. 

The strategy calls on DOJ to prioritize cases that will reduce public health and environmental harms to overburdened and underserved communities, ensure meaningful engagement with impacted communities, and promote transparency regarding environmental justice enforcement efforts and results. 

Separately, DOJ is taking public comment on its interim final rule revoking regulations issued by the Trump Administration which prohibited the use of SEPs in civil enforcement actions.  

SEPs are voluntary projects that provide environmental benefits to local communities that can help offset the penalties imposed by DOJ. SEPs have long enjoyed strong support from the clean water community, industry, and environmental justice advocates. However, the previous administration banned their use except in limited situations out of concern that they amounted to unlawful settlement payments to non-governmental third parties. 

To address those concerns, concurrent with its SEPs rule DOJ issued a memorandum outlining guidelines for SEPs designed to ensure their appropriate use. Pursuant to the memorandum, DOJ will require that SEPs have a clearly defined scope and a strong connection to the underlying federal violations at issue.  

DOJ will also ensure that the Department does not propose the selection of particular third parties to implement SEPs, retain post-settlement control over the management of funds, or require payments to third parties solely for general public education projects. 

NACWA has long supported the use of SEPs and is considering filing comments supporting DOJ’s actions to allow the use of SEPs in Clean Water Act enforcement actions. 

Contact: Amanda Aspatore at 202/833-1450 or Amanda Aspatore

EPA Releases Trio of PFAS Updates Impacting Clean Water Utility Sector 

EPA published its Draft Recommended Aquatic Life Ambient Water Quality Criteria (AWQC) for Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonic Acid (PFOS) in the Federal Register on May 3. The comment period has been extended by 30-days to July 2, 2022.  

The draft recommended AWQC reflect observed life history effects of PFOA and PFOS on a variety of aquatic species, including effects on survival, growth, and reproduction. The AWQC for aquatic life demonstrate the maximum individual concentrations of PFOA and PFOS in frequency and duration that protect aquatic life from short-term and chronic effects in freshwater. Read the full story in the Clean Water Current

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

NACWA Files Comments on EPA Permit with PFAS Monitoring Requirements 

NACWA submitted comments April 26 to EPA Region 1 on its proposed draft NPDES General Permit for Medium Wastewater Facilities in Massachusetts. This is the first draft general permit issued directly by EPA that requires PFAS monitoring, and it could be a signal for state Clean Water Act authorized permitting agencies elsewhere to incorporate similar requirements. 

NACWA has concerns that this draft general permit could trigger a wave of similar prescriptive PFAS requirements across the country that could have unintended consequences. The permit requires quarterly sampling of influent, effluent, biosolids, and upstream industrial sources using the unpromulgated method for detecting PFAS, Method 1633. Utilities are required to report to EPA and the state through their discharge monitoring report concentrations for 6 PFAS chemicals and all other PFAS found. 

In addition, the draft permit requires permittees—those with pretreatment programs and those without established pretreatment programs—to look upstream at industrial sources, including some industries that are not clearly identified. For example, utilities are to sample for PFAS at “contaminated sites,” “manufacturers of parts with polytetrafluoroethylene or Teflon type coatings,” and “any other known or expected sources of PFAS.” Read the full story in the Clean Water Current

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

NACWA Asks EPA to Support Biogas-Derived Vehicle Fuels 

NACWA submitted comments May 16 to EPA on the Agency’s proposed rule on air emissions from heavy duty engines and trucks, supporting EPA’s overall efforts to regulate emissions from these vehicles but also asking that EPA support and promote fueling them with biogas from wastewater treatment facilities. 

EPA’s proposed rule seeks to incentivize the use of zero emission vehicles (ZEV) and near-zero emission vehicles (NZEV) to help reduce nitrogen oxide, particulate and greenhouse gas emissions. NACWA’s comments support EPA’s work to reduce these emissions and support the proposal’s endorsement of both ZEV and NZEV vehicles. Read the full story in the Clean Water Current.  

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

NACWA Files Comments on White House Climate and Economic Justice Screening Tool 

NACWA filed comments May 25 on the Council on Environmental Quality’s Climate and Economic Justice Screening Tool (CEJST).  

Developed as part of the Justice40 Initiative, CEJST utilizes national census tract data to identify communities that are economically disadvantaged and overburdened by pollution and historic underinvestment. Federal agencies will use the tool to ensure that 40 percent of federal investments in climate, clean energy, training and workforce development, remediation and reduction of legacy pollution, and development of clean water infrastructure are directed at disadvantaged communities.  

While CEJST will not impact programs such as the Clean Water State Revolving Fund, it will be used in assessing projects eligible for certain federal investments including Water Infrastructure Finance and Innovation Act program loans. Read the full story in the Clean Water Current

Contact: Amanda Aspatore at 202/833-1450 or Amanda Aspatore

NACWA Encourages Members to Register for EPA’s Environmental Financial Advisory Board Webinars 

EPA’s Environmental Financial Advisory Board (EFAB), which is housed under the Agency’s Water Infrastructure and Resiliency Finance Center, hosted its first public webinar on May 10 and is hosting a second webinar on June 22, 2022 from 12:00 pm – 1:30 p.m. EDT.  

The webinars are part of a series to support EFAB’s Pollution Prevention Workgroup. They will explore opportunities and challenges in financing sustainability, with a focus on advancing opportunities for small and medium-sized utilities and enterprises. 

To learn more about EFAB’s workgroups, click here. If you missed the May 10th webinar, you can watch the recording. Members are encouraged to register for the upcoming June 22nd webinar.  

Water Sector Coordinating Council Discusses Cybersecurity with EPA, DHS 

The Water Sector Coordinating Council (WSCC) met on May 24 to discuss issues related to the security and emergency preparedness of the water sector, particularly cybersecurity and supply chain issues. The WSCC also met with the Water Government Coordinating Council (GCC) the following day.  

The WSCC is a policy, strategy and coordination mechanism for the US Water and Wastewater Systems Sector in interactions with the government and other sectors on critical infrastructure security and resilience issues. The WSCC coordinates and collaborates with EPA, the Department of Homeland Security (DHS), state primacy administrators and other government agencies, primarily through the GCC.  

During both meetings, cybersecurity was the primary topic of discussion, with a focus on how existing tools and funding can be more effectively disseminated to utilities that need them. Read the full story in the Clean Water Current

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

EPA Provides Tips, Best Practices for Supply Chain Challenges During Important Online Session 

Recent disruptions including the pandemic, volatile climate events, and unexpected equipment failures have had downstream consequences for water and wastewater utilities in their efforts to procure treatment chemicals and other critical supplies. 

On May 26th EPA hosted a webinar on new resources to prepare for and respond to chemical and equipment supply chain disruptions. 

Speakers demonstrated how utilities can better understand their supply chain utilizing the new Water Treatment Chemical Suppliers and Manufacturers Locator Tool, in addition to sharing best practices and explaining how to tap into EPA’s technical assistance to resolve supply chains challenges.  

Interested utilities should register to view the recording for this webinar. 

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