Regulatory Update

September 2023 Regulatory Update

Sep 29, 2023

Regulatory Perspectives 

EPA Ramping Up on Clean Air Act Regulatory Revisions with Eye on PFAS Emissions  

NACWA is closely following a number of efforts subtly introduced over recent weeks that could change reporting requirements under the Clean Air Act (CAA) and potentially alter the regulatory requirements governing when new pollutants are added to the list of hazardous air pollutants (HAP).  

While these regulatory policies will primarily impact clean water utilities with sewage sludge incinerators (SSIs), they could also impact utilities that are categorized as major sources under the CAA. Each of these efforts mention PFAS, indicating the Agency is making strides to honor commitments from its 2021 PFAS Strategic Roadmap to “build the technical foundation on PFAS air emissions to inform future decisions.” 

In July, EPA published a draft information collection request (ICR 2170.09) that proposes changes to Air Emissions Reporting Requirements (AERR) and recently extended the comment period to allow for additional comments. The proposal would not only require sources to report emissions data to their respective states, but directly to EPA itself. It also proposes changes to the reporting timeframes and eliminates the staggering of reporting deadlines.  

Of concern, the proposal significantly expands reporting requirements to all HAPs – not just the 188 pollutants listed on the CAA’s HAP list. EPA is also soliciting whether it should require PFAS emissions to be included in the reporting requirements – acknowledging the current limitations on methodology and health risks. Additionally, the proposal would require reporting of all non-HAP pollutants under the Toxic Release Inventory – significantly expanding the number of pollutants beyond those regulated under the CAA. 

The two other Clean Air Act proposals include efforts to revise the Regulatory Requirements for New HAP Additions. EPA, for the first time in 2022, added a new pollutant, 1-Bromopropane, to CAA’s list of HAPs. But there are many regulatory questions regarding HAPs that EPA is still trying to resolve. For instance, if a pollutant is added to the HAP list, is it regulated under any National Emission Standard for Hazardous Air Pollutants (NESHAP) that exists when a HAP listing goes into effect? Additionally, what is the timing for a newly listed HAP to be included in emission estimates? These are important questions, and EPA is beginning to flesh them out at the same time it is considering regulations for PFAS, either as individual chemicals or as a class, in the CAA space.  

Furthermore, EPA is tackling the “Once In, Always In” (OIAI) policy that a major source can “reclassify” its status as a source if it makes certain improvements and pollution abatements to reduce hazardous air emissions. EPA is also proposing a rule to reinstate the OIAI policy and codify it after the previous EPA Administration issued a guidance memo allowing major sources the ability to reclassify their status.  

NACWA is working closely with members that might be impacted by these proposed rulemakings. On the PFAS front, NACWA is very concerned that the Agency is moving too quickly and engaging in a fact-finding mission when there is no analytical method for measuring PFAS air emissions accurately and with confidence. NACWA also has concerns over the cost and administrative burden these proposals will have on members that operate incinerators.  

If members have more information or would like to participate in NACWA’s comments on these various CAA regulatory proposals, please contact Emily Remmel, NACWA’s Senior Director of Regulatory Affairs.  

Top Stories 

NACWA Files Comments as Science Advisory Board Conducts Final Review of EPA’s Draft Biosolids Risk Framework 

NACWA filed comments September 14 with EPA’s full Science Advisory Board (SAB) in advance of its meetings on September 21 and 22 to conduct a final review of EPA’s draft Standardized Framework for Sewage Sludge Chemical Risk Assessment. This was the last step the SAB will take before offering concluding recommendations to EPA Administrator Regan.  

Earlier this year, EPA formed an ad hoc biosolids Science Advisory Board panel and charged the expert panel with reviewing EPA’s proposed risk framework and biosolids screening tool. NACWA supports the recommendations put forward in the ad hoc panel’s draft report from August 30 and submitted its own comments asking the full SAB to carefully consider several shortcomings identified by NACWA and the biosolids expert panelists serving on the ad hoc panel before the Agency begins screening chemicals for potential risk.  

Notably, many of the concerns NACWA raised in initial comments were included in the panel’s final report and highlighted as areas where EPA should reconsider its approach. For example, the final report from the ad hoc SAB panel mentions several “potential pitfalls and limitations” in EPA’s proposed approach and the need for the Agency to truly consider the unique characteristics of biosolids. One example the report noted is the importance of examining the biosolids-soil matrix and individual chemical fate and transport mechanisms, rather than simply looking at chemical concentrations.  

NACWA also supports the SAB’s concerns over compound conservatism and how the farm family narrative put forth by EPA is not a realistic exposure framework for considering modern day biosolids land application. NACWA supports the SAB’s finding that the farm pond and agricultural field are not appropriate metrics when considering ecological risk and that EPA should use its own Guidelines for Ecological Risk Assessment.  

NACWA applauds the work of the SAB in reviewing EPA’s proposed approach to assessing the risk of chemicals in biosolids. The SAB experts selected to serve on the panel gave considerable attention to detail throughout the process, judiciously debated the scientific merits of the charge questions before them, and ended the review process with a final report that NACWA believes speaks to both the strengths and practical shortcomings of the proposed biosolids framework.  

NACWA participated in each of the three public meetings held throughout the year and submitted comments on March 22 and July 5 for the panel to consider as they discussed various aspects of EPA’s draft risk framework.  

NACWA would like to thank corporate affiliate Geosyntec for its helpful review of the draft materials and assistance preparing comments. If members have questions on NACWA’s involvement in any of the SAB meetings, its comments, or the process, please contact NACWA’s Senior Director of Regulatory Affairs, Emily Remmel at 202/533-1839. 

EPA and Army Corps Issue New WOTUS Rule…Again 

The U.S. EPA and Army Corps of Engineers (Corps) issued a new final rule on August 29 amending their Jan. 2023 definition of "Waters of the United States" (WOTUS), which outlines which waters fall under the federal purview of the Clean Water Act.  

The new (new) rule is intended to conform the WOTUS definition to the May 25, 2023 Supreme Court decision in Sackett v. EPA, which limited the scope of federal jurisdiction to “relatively permanent bodies of water” and wetlands with a “continuous surface connection” to such waters.  

To accomplish this, the updated rule removes the longstanding “significant nexus” test that was roundly rejected by the Sackett decision and revises the test for “adjacent” wetlands to comport with the “continuous surface connection” language from the Supreme Court.  

The rule does not, however, provide additional clarity with respect to how the agencies intend to implement terms such as “relatively permanent” and “continuous” when issuing jurisdictional determinations. Nor does the rule alter the WOTUS exclusions finalized by the Biden administration in its Jan. 2023 rule. Those exclusions do not include the express carve-outs for stormwater control features that had been contained in previous WOTUS iterations, but it does maintain the established exemption for “waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Act.”  

Interestingly, the agencies are taking the position that there is “good cause” under the Administrative Procedure Act (APA) to issue the updated rule without opportunity for public notice and comment, and to make it immediately final upon publication in the Federal Register. The notice was published on September 8.  

According to EPA and the Corps, typical notice and comment procedures are “unnecessary,” because, in ensuring the WOTUS definition conforms to the Supreme Court’s Sackett decision, the amendments “do not involve the exercise of the agencies’ discretion,” and “a notice and comment process would neither provide new information nor inform any agency decision-making.”  

Legal experts will also be discussing the latest WOTUS developments at NACWA’s 2023 National Clean Water Law & Enforcement Seminar in Asheville, N.C. Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.  

Air Quality 

Member Input Needed on Tier 4 Certified Generator Use at Utilities 

NACWA is requesting information from its members about the use of generators that meet EPA’s Tier 4 emission standards.  

NACWA has heard concerns from utility members about the reliability of generators that are certified to meet the Tier 4 standards, since these generators have an automatic shut-off when emissions exceed regulatory requirements. These generators can only be restarted when the manufacturer physically resets the generator, which could lead to extended interruptions in backup power during natural disasters and other widespread emergencies.  

Read the full story in the Clean Water Current

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

Funding and Finance 

EPA Announces New Funding Opportunities for Water Workforce Grants and WIFIA 

On September 25, EPA announced a Request for Applications (RFA) for over $20 million in grant funding to support training for workers who protect and treat our nation’s drinking water and provide critical wastewater services. Through the Innovative Water Infrastructure Workforce Development Grant program, EPA will support training and career opportunities in the water sector. Eligible organizations interested in applying must submit their application to EPA by November 17, 2023.  

Additionally, on September 21, the EPA announced the availability of $7.5 billion in WIFIA funding, consisting of $6.5 Billion through the WIFIA program and $1 billion through the State WIFIA (SWIFIA) program, which provides loans exclusively for State infrastructure financing authority borrowers.  

Read the full story in the Clean Water Current

Pretreatment & Pollution Prevention 

NACWA Asks FDA to Consider Environmental Impacts of Opioid Disposal Methods 

In comments submitted August 28, NACWA asked the Food and Drug Administration (FDA) to thoroughly evaluate the effectiveness and environmental impacts of at-home disposal methods for unused opioid medications before encouraging their widespread use. The FDA published a request for information to assist it in assessing whether at-home disposal methods can help mitigate the risk of abuse and overdose of prescription opioids.  

NACWA’s comments explained that drug take-back programs have been supported by its member utilities, which ask their communities not to flush unused prescriptions or dispose of them in the trash. NACWA has also supported providing mail-back envelopes with prescriptions, since they have been used effectively in the past and result in destruction of the pharmaceuticals through incineration.  

Read the full story in the Clean Water Current.  

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

Regulatory Policy  

NACWA Meets with EPA Office of Wastewater Management on Nutrient and Funding Issues 

NACWA staff met with EPA’s Office of Wastewater Management (OWM) on September 20 to catch up on a variety of efforts underway at the Agency. A key topic of discussion was EPA’s document on Baseline in Market-Based Approaches, Including Water Quality Trading under the National Pollutant Discharge Elimination System (NPDES) Program, which was sent to the Office of Management and Budget in August.  

This “policy statement” would clarify flexibilities available around nutrient trading in NPDES permits and how baseline levels would be established, but NACWA is concerned based on conversations with OWM that the revised policy is much narrower than the version published in a 2019 Federal Register notice and that it will unnecessarily limit potential permitting flexibilities. The clean water community can expect to see EPA’s “policy statement” on nutrient trading before the end of the calendar year.  

Read the full story in the Clean Water Current

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

Infrastructure Advisory Council Releases Preliminary Report on Water Sector Challenges 

The President’s National Infrastructure Advisory Council released a draft report in late August examining the current challenges facing the nation’s water infrastructure and outlining a series of recommendations to better prepare the water sector for potential upcoming crises.  

The report concludes that to successfully address the issues that may confront the water sector in the future, there must be a coordinated effort among utilities, operators, and local, Federal, and state government. This effort must be focused on delivering results that strengthen the security and resilience of the nation’s water infrastructure.  

Read the full story in the Clean Water Current.  

Contact: Nathan Gardner-Andrews at 202/833-3692 or Nathan Gardner-Andrews

Final Buy America Infrastructure Project Guidance Released 

The White House Office of Management and Budget issued final guidance to federal agencies last month on how to implement the Build America, Buy America (BABA) requirements in the Bipartisan Infrastructure Law (BIL).  

As previously reported by NACWA, the BIL significantly expanded BABA requirements to cover construction materials and manufactured goods and applied these new requirements to all federal infrastructure financing programs – including water, transportation, energy, and many other areas receiving federal government investment.  

Read the full story in the Clean Water Current.  

Contact: Danielle Cloutier at 202/533-1824 or Danielle Cloutier

Security and Emergency Preparedness 

Free Cyber Vulnerability Scanning Offered for Water Utilities by CISA 

The Cybersecurity & Infrastructure Security Agency (CISA) is offering free cyber vulnerability scanning for drinking water and wastewater utilities, and a new factsheet explains the details of this program. The program helps utilities to identify internet-accessible assets and the vulnerabilities in these assets. Weekly reports are provided with the results of the ongoing vulnerability scanning, as well as recommendations for mitigating the identified vulnerabilities. The factsheet provides further information about the program, including how to get started. 

NACWA strongly recommends that its utility members use CISA’s cyber vulnerability scanning. NACWA members who use the program have reported that setting up the scanning is a straightforward process and that it has successfully helped them to identify vulnerabilities.  

Read the full story in the Clean Water Current.  

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

DHS Announces Funding for Cybersecurity Grant Program for State and Local Governments 

The Department of Homeland Security announced $379 million in funding for the second year of a four-year, $1 billion cybersecurity grant program for state, local, and territorial governments. The State and Local Cybersecurity Grant Program and the Tribal Cybersecurity Grant Program, funded through the Bipartisan Infrastructure Law, will help these entities address cybersecurity risks.  

Read the full story in the Clean Water Current.  

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

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