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Regulatory Update

November/December 2022 Regulatory Update

Dec 20, 2022

Regulatory Perspectives 

As the year end nears, the clean water community can reflect on a truly busy and unique regulatory year. NACWA voiced opposition on the U.S. Environmental Protection Agency’s (EPA) efforts to revise a nearly three-decade old affordability framework, filed comments and an amici brief on a third rewrite of Waters of the United States (WOTUS), and received substantial member engagement to oppose a novel proposed hazardous substance designation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Needless to say, the clean water sector was on its toes in 2022.  

NACWA members were instrumental throughout the year in proactively engaging with EPA, state regulatory agencies, and other stakeholders. The Association and its members supported sustainable energy (biogas derived vehicles), increased infrastructure resiliency (cybersecurity and “Do Not Flush” labeling), continued biosolids management operations and options, and implementable and practical nutrient permitting efforts.  

The year ahead will be even more demanding as the 2022 proposed efforts churn through the regulatory promulgation machine. It is expected that many of the above regulatory policies will be finalized in 2023. In addition, the sector will undoubtedly witness increased regulatory activity as the timeframe to achieve certain policy outcomes dwindles with the 2024 Presidential election coming closer into view.  

To ice the cake, this Administration’s continued acceleration of action to address per- and polyfluoroalkyl substances (PFAS) is not likely to wane. States, too, have kept the foot on the gas on PFAS initiatives. As the 2023 calendar takes off, something to watch for is how state’s react to recent EPA guidance in their own efforts to mitigate PFAS in waters. It is imperative that the public clean water community pay close attention to PFAS and remain engaged on this complex and ever-growing topic, given its profound impacts on water systems, and as it could pave a regulatory path forward for how EPA and other federal agencies may address other emerging contaminants (e.g., microplastics) to come. 

NACWA expects the following movement on PFAS next year that will undoubtedly impact the clean water sector: 

  • A final rule designating PFOA and PFOS as hazardous substances under CERCLA; 

  • A proposed rulemaking to establish national drinking water regulations for PFOA and PFOS; 

  • Effluent limitation guidelines for certain industrial categories discharging PFAS; 

  • Finalization of the multi-laboratory validation study for Method 1633 and promulgation of this analytical method under Clean Water Act Part 136; 

  • Final recommended ambient water quality criteria for PFOA and PFOS and possible proposal of human health water quality criteria for PFAS; and 

  • A much-anticipated review from the Scientific Advisory Board on a biosolids pollutant screening tool and problem formulation. 

While this trip around the sun has been busy, it is almost time to say goodnight to 2022. Rest assured, NACWA stands ready and eager in 2023 to take on the full suite of regulatory, legislative, and legal initiatives to help members continue their tireless efforts to be pillars of their communities and stewards of the environment and public health. 

Top Story 

In comments filed with EPA on November 7, NACWA expressed serious concerns with the Agency’s proposal to designate two per- and polyfluoroalkyl substances – PFOA and PFOS – as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and encouraged EPA to take steps to shield clean water utility ratepayers from liability for PFAS cleanups.  

NACWA’s comments detail how, contrary to its stated “polluter pays” goals, CERCLA’s “disposal” liability framework can at times let chemical companies off the hook for pollution caused by their products and instead hold public clean water agencies responsible for cleanups solely because of the vital human health and environmental services they provide. These problems, NACWA explains, will become much more acute if EPA finalizes the designations as proposed given the ubiquitous and “forever” nature of PFAS chemicals and the fact that public wastewater and stormwater systems throughout the country passively receive and discharge them.  

The comments also point out concerns with calling for nationwide cleanup actions before analytical test methods, safe exposure levels, and effective remediation practices for PFAS chemicals are known and, critically, before source control measures have been implemented that stem their constant introduction into the environment.  

In particular, NACWA notes the strain this will place on responsible municipal biosolids management practices and utility wastewater and stormwater discharges permitted under the Clean Water Act – consequences which EPA inexplicably and inappropriately failed to consider in the proposal, and which will disproportionally impact disadvantaged communities.  

In light of these significant issues, NACWA asks EPA to take a number of steps prior to moving forward with the proposal, including: prioritizing the implementation of robust PFAS source control measures; continuing to develop PFAS analytical methods, human health and environmental risk assessments, and destruction technologies; working holistically among program offices on PFAS initiatives and fully assessing the potential ramifications on clean water utilities of proposed regulatory actions; clarifying existing CERCLA exclusions to ensure they are appropriately applied to clean water utility practices; and supporting a true “polluter pays” approach by encouraging Congress to adopt a comprehensive exemption for the clean water community from PFAS-related CERCLA liability.  

In addition to NACWA’s detailed comments, NACWA helped develop coalition comments to emphasize common concerns and elevate a unified message across water sector organizations. These comments reiterate the need for a true “polluter pays” approach, concerns with a rushed rulemaking and an incomplete accounting of impacts on water systems and the communities they serve, the need for greater source control, and the limitations to EPA’s commitment to exercise enforcement discretion.   

After NACWA’s comments were submitted to EPA, NACWA’s legislative team also shared them with Congressional Committee of Jurisdiction and Member offices as part of NACWA’s ongoing effort to secure a targeted Congressional exemption from CERCLA for PFAS for public clean water agencies. This effort will remain a top priority for the Association heading into 2023.  

Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions concerning NACWA’s comments.  

The public can access the special feature online at https://www.viewpointproject.com. In addition, WEF created a dedicated website, that will be highlighted at the end of the story segment and is intended to engage the broader public on the benefits of biosolids. 

Clean Water Funding/Finance 

On November 29, U.S. EPA announced the release of $52 million in grants to states to improve essential stormwater infrastructure, reduce sewer overflows and invest in water reuse projects. States must apply to EPA to secure the funding for projects in their local communities, so clean water agencies interested in this program should contact their state water financing authorities.  

NACWA worked closely with Congress to establish this Sewer Overflow and Stormwater Reuse Municipal Grants program targeted to helping communities address stormwater, sewer overflows and reuse initiatives. More information on the program can be found here and members can read more in the Clean Water Current

On November 4, EPA announced the selection of 29 Environmental Finance Centers (EFCs) that will help communities across the country access federal funding for infrastructure and greenhouse gas reduction projects that improve public health and environmental protection.  

EPA will award up to $150 million in grants to EFCs over the next five years, once all legal and administrative requirements are satisfied. The Bipartisan Infrastructure Law provides $98 million of the total investment through the Clean Water State Revolving Fund (CWSRF) and the Drinking Water State Revolving Fund (DWSRF), with the remainder coming from EPA appropriations. Read the full story in the Clean Water Current.  

For more information on the program and a list of the EFCs, click here.  

On November 3, U.S. EPA released additional guidance, Build America, Buy America Act Implementation Procedures for EPA Office of Water Federal Financial Assistance Programs, related to the Build America, Buy American Act (BABAA) changes that were made in the Bipartisan Infrastructure Law (BIL). 

Utilities, engineering firms, equipment manufacturers, and others have been awaiting additional guidance to inform how they can comply with BABAA. The law was enacted in November 2021 and went into effect in May 2022, putting projects that have started development since then at a potential disadvantage without the necessary guidance to inform whether and how they may design to qualify for federal infrastructure funding or financing. BABAA requirements apply to all federal financing moving forward, including State Revolving Funds (SRFs), WIFIA, and EPA grant programs – not just funds coming through the BIL. Read the full story in the Clean Water Current

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

Emerging Contaminants 

Under the Safe Drinking Water Act, EPA is required every five years to publish a list of unregulated chemicals that are known or anticipated to occur in drinking water and may pose risks to public health. Recently, EPA finalized its Contaminant Candidate List 5 (CCL5) and identified 66 chemicals, 3 groups of chemicals (PFAS, cyanotoxins, and disinfection byproducts or DBPs), and 12 microbes. 

While there is no current direct regulatory impact to listing these chemicals, EPA often pulls from the CCLs when it issues the Unregulated Contaminant Monitoring Rule (UCMR). If these chemicals are in EPA’s next iteration of UCMR, drinking water systems would be required to monitor for these chemicals or groups of chemicals. Read the full story in the Clean Water Current.  

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

U.S. EPA Assistant Administrator Radhika Fox issued a new memorandum, Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs, to states’ regulatory authorities on December 5 detailing recommendations on how the Agency would like states to leverage Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits to reduce PFAS discharges into waters. Read the full story in the Clean Water Current.  

Contact - Emily Remmel, NACWA’s Director of Regulatory Affairs 

As anticipated, EPA recently proposed a rule to eliminate the de minimis reporting exemption that allows facilities to avoid reporting PFAS to the Toxic Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act (EPCRA).  

NACWA has supported EPA’s TRI efforts on PFAS in previous regulatory comments and continues its support to close this loophole that allows industries to escape reporting because they use PFAS at low concentrations. If finalized, PFAS will be listed as “chemicals of special concern” rendering them ineligible for the de minimis exemption. Read the full story in the Clean Water Current.   

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

Energy & Resource Recovery 

EPA released a pre-publication version of its proposed Renewable Fuel Standards (RFS) for 2023-2025 on November 30, which also contains changes to the RFS regulations that may benefit clean water utilities. The RFS program incentivizes the production of transportation fuels from renewable biomass, including biosolids. The regulatory changes could provide more options for utilities to generate these fuels.  

NACWA has been working with the California Association of Sanitation Agencies (CASA) to advocate for changes in how the RFS program classifies fuel produced through co-digestion of biosolids and food waste. The current classification decreases the value of fuel produced from biosolids if food waste is added to the anaerobic digesters, despite the environmental benefits of co-digesting food waste. The proposed method will allow the portion of the fuel produced from biosolids to maintain its higher classification value. Read the full story in the Clean Water Current

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

Environmental Justice 

The White House released an updated version of its Justice40 screening tool on November 22, the Climate and Economic Justice Screening Tool (CEJST 1.0), to incorporate new data and improvements aimed at ensuring historically disadvantaged communities see the benefits of climate and infrastructure investment.  

The updated tool displays the lands of Federally Recognized Tribes, including Alaska Native Villages, uses an updated methodology, and incorporates additional datasets including on climate risks, transportation inequities, historic redlining, legacy pollution, lack of indoor plumbing, and lack of access to clean drinking water – listing more than 27,000 US communities as disadvantaged or partially disadvantaged based on these factors. Read the full story in the Clean Water Current.  

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

Regulatory Policy  

NACWA, along with the Water Environment Federation, the American Water Works Association, the US Conference of Mayors and the National League of Cities, wrote EPA Administrator Michael Regan and the Acting Administrator of the White House’s Office of Information and Regulatory Affairs (OIRA), Dominic Mancini, on November 10 to raise concerns with EPA’s revised Financial Capability Assessment Guidance. 

The letter outlined the groups’ concerns with the revisions that have been made since early 2021, when a previous draft of the guidance was withdrawn, and the lack of engagement the current administration has had with the municipal and water communities. EPA is preparing to issue the final version of the document and confirmed that the latest draft was being reviewed by OIRA, which is part of the White House’s Office of Management and Budget. Read the full story in the Clean Water Current

Contact: Chris Hornback at 202/833-9106 or Chris Hornback

Security and Emergency Preparedness 

Water Sector Coordinating Council Discusses Cybersecurity with EPA, DHS 

The Water Sector Coordinating Council (WSCC) met on November 15 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 the EPA, the Department of Homeland Security (DHS), state primacy administrators and other government agencies, primarily through the GCC. NACWA’s representatives on the WSCC are Talyon Sortor, Assistant General Manager of the Fairfield-Suisun Sewer District, and Karen Pallansch, Chief Executive Officer of Alexandria Renew Enterprises. Read the full story in the Clean Water Current.  

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

Stormwater  

Earlier this year, the U.S. Census Bureau revised and finalized new criteria for how it defines urban areas based on the 2020 Census. The Bureau's new criteria eliminate the term "urbanized areas," which will have a subsequent impact on how EPA and states designate and regulate Phase II municipal separate storm sewer systems (MS4s) under the Clean Water Act. NACWA flagged this nuanced issue with EPA a few months ago, and EPA has now issued a direct final rule to clarify how it plans to address the change in terminology.  
 
EPA will be replacing the "urbanized areas" terminology throughout 40 CFR 122 and 123 with the phrase "urban areas with a population of at least 50,000." This new phrase is synonymous with how the U.S. Census Bureau previously defined urbanized areas; therefore, EPA does not anticipate opposition to this clarification or any change in how Phase II MS4s have previously been categorized. Read the full story in the Clean Water Current.   

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

Water Quality 

In a notice published in the Federal Register on November 30, EPA seeks to renew its existing approval to collect information from wastewater laboratories, including POTWs, on the “analytic ability of laboratories that perform chemical, microbiological and whole effluent toxicity analyses.” EPA is leveraging Clean Water Act Section 308 with this request, which requires major and selected minor National Pollutant Discharge Elimination System (NPDES) permit holders to participate in the Discharge Monitoring Quality Assurance (DMR-QA) study.  

The quality assurance program requires permittees to annually analyze proficiency test samples and submit results for grading. Results are subsequently provided to the appropriate federal or state permit authority, and if necessary, permittees will be required to complete steps for corrective action. Read the full story in the Clean Water Current

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

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