November/December Regulatory Update

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November/December 2017 Regulatory Update.

 Regulatory Perspectives: A Looming Challenge for Biosolids Land Application?

EPA's former acting research chief, Bob Kavlock, named per- and polyfluoroalkyl substances (PFAS) as “likely the most dominant human health issue of the next 5-10 years” in a note to his staff announcing his retirement just weeks ago. While Kavlock noted that EPA research staff are positioning themselves to be the leaders on this issue, there are already major policy decisions and management actions being taken on PFAS at the state level.

The issue with PFAS presents itself first in the drinking water context, but it quickly leads to concerns for wastewater and biosolids management as regulators look for sources of these chemicals. The biggest concerns (highest concentrations of PFAS in drinking water sources) seem to be around military bases and airports given the firefighting operations that use foam containing these chemicals, but PFAS are so persistent and their use in things like the manufacturing of Teflon, fabric stain proofing, older Gore-Tex outer wear, etc., was so widespread, that they are now almost everywhere. Concentrations in biosolids have dropped significantly since manufacturing of certain PFAS was stopped, but the persistence of the chemicals means we will be dealing with some level of them in biosolids for a while.

Given current and potential impacts on groundwater, impacted states are looking to address possible sources and have turned their attention in some cases to biosolids land application. EPA has identified PFAS as an area of concern for drinking water, recently including two forms of PFAS in its Contaminant Candidate List (CCL 4) published in November 2016 and issuing a non-regulatory health advisory of 70 parts per trillion last year. Some states are using that advisory level as a regulatory limit and some are looking at lower levels and in some cases looking at potential limits for biosolids and other residuals that may be a source of groundwater contamination.

EPA’s biosolids office has some risk assessment work ongoing in this area, but it won’t be ready any time soon. That means decisions at the state level will likely be made regarding the potential impacts of biosolids land application without a full understanding of whether the presence of low levels of PFAS presents any risk. The Agency has a number of cross-agency activities underway to address the PFAS challenge, but this is an area that NACWA and its members need to remain focused on in the coming months and years.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

Top Stories

NACWA Comments on WOTUS as EPA Takes Steps to Delay Effective Date of 2015 Rule

NACWA provided oral comments November 14, during an EPA listening session on the Waters of the United States (WOTUS) rulemaking. EPA is moving quickly with a two-step rulemaking process to first withdraw the 2015 Clean Water Rule and reinstate the regulatory regime that was in place prior to that rule; and second, to develop a new WOTUS definition.

The listening session, one of several the Agency has hosted over the last several months, was geared toward water, wastewater and stormwater managers, and sought input on a range of questions regarding how EPA should define WOTUS in its upcoming proposed rule. The proposed rule is expected in the February to March timeframe of 2018. (Information on the call, including the presentation EPA provided, will be posted on EPA’s website).

NACWA’s comments focused on the need to preserve the “waste treatment exemption,” as well as the exemptions for stormwater control and water recycling features added by the 2015 Clean Water Rule. NACWA also stressed the importance of maintaining the exclusion for groundwater and the need to clarify that groundwater should not be treated as a point source under the Clean Water Act. However, NACWA also noted that source water and watershed protection are critical issues for public water utilities, and encouraged EPA to ensure these concerns are addressed in the new WOTUS rule.

The Association submitted written comments to the Agency on November 27, in line with the remarks it made during the November 14 listening session. EPA Administrator Scott Pruitt wants to issue a final rule by the end of 2018.

In a related development, EPA published a proposed rule November 22, to delay the effective date of the 2015 Clean Water Rule for two years from the date that the new action is finalized and published in the Federal Register. Originally scheduled to go into effect on August 28, 2015, implementation of the 2015 Clean Water Rule is on hold as a result of the federal Sixth Circuit Court of Appeals’ nationwide stay of the rule, as well as a stay in 13 states due to a North Dakota federal district court ruling.

EPA is concerned that the nationwide stay may be affected by the Supreme Court’s pending decision, expected as early as January 2018, on whether the district or circuit courts have jurisdiction to hear challenges to the Clean Water Rule. While the Trump Administration is working to repeal the Clean Water Rule altogether, it will not be able to do so before the Supreme Court rules, leaving the possibility that the nationwide stay may be lifted and cause a patchwork of regulations across the country. EPA hopes to complete the new action to extend the effective date of the Clean Water Rule before the Supreme Court rules, thus avoiding any scenario where the 2015 could go back into effect. EPA will accept comments on the November 22, effective date delay rule until December 13.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

National Academy Report Recommends Changes to EPA's Affordability Assessment Procedures

Echoing NACWA’s advocacy on affordability issues over the past decade, a new report from the National Academy of Public Administration (NAPA) recommends major changes to EPA’s procedure for evaluating ratepayer affordability and utility financial capability.

The report outlines 21 recommendations that “acknowledge the stakeholder identified deficiencies in the [EPA 1997 Financial Capability Assessment Guidance]…and propose improvements” to both the residential indicator and the financial capability components of EPA’s current process, among other things. The report stresses, however, that EPA also needs an “effective and equitable starting point for all permittees.” Instead of recommending a wholesale revision to EPA’s current procedures, NAPA makes suggestions for improving the assessment process and a number of related areas, including integrated planning.

The Senate Appropriations Committee, in a report on Fiscal Year (FY) 2016 legislation, directed EPA to enter into a contract with NAPA to “conduct an independent study to create a definition and framework for community affordability.” NACWA, its members, and other groups in the water sector provided extensive input during the interview process and participated in several meetings and roundtables for this purpose. The first five recommendations focus on the heart of the affordability issue and address many of NACWA’s top concerns:

  1. EPA should improve the metrics used for the residential and financial capability indicator components of the existing guidance. NAPA includes a list of criteria that these metrics should meet. NAPA believes an improvement to the current approach will meet EPA’s needs for a common starting point for all permittees, but also allow for the consideration of supplemental information
  2. The residential indicator, a measure of the affordability for ratepayers, should include all water costs—EPA does not currently allow drinking water costs to be included—and should focus on low-income users most vulnerable to rate increases, rather than median household income.
  3. The financial capability indicator should be revised to:
    1. Focus on operational efficiency, debt burden, and managerial effectiveness; and
    2. Expand the socioeconomic components affecting the utility's market condition
  4. The EPA should consider using the improved assessment framework in all its water-related regulatory decisions consistent with current statutory requirements.
  5. The EPA should improve its two-way communication strategy with its regions, state regulators, and other stakeholders. NAPA specifically highlighted one of NACWA’s top concerns that direction from EPA Headquarters was not being consistently implemented by the regions.

Recommendations 6-10 focus on improving the use of integrated planning, including additional guidance and online resources (e.g., case studies), more technical assistance, and an interesting recommendation that EPA require each integrated plan provide established criteria and a formalized agreement between the community and the appropriate government entity to guide implementation. NACWA will be reviewing this recommendation closely to determine whether it might constrict, rather than support, broader use of integrated planning.

Recommendations 11-15 focus on several stormwater-related issues, including new business models, stormwater fees and innovative practices like green infrastructure. Recommendations 16-20 focus on stretching limited federal resources, including via innovative leveraging of the Water Infrastructure Finance & Innovation Act (WIFIA) program to expand State Revolving Fund (SRF) lending activities, and working with state and local governments to eliminate barriers to more efficient and effective rate structures. Recommendation 21 specifically suggests that EPA consider the development and use of performance standards in the integrated planning context, to focus on outcomes rather than design or process. In addition to the recommendations, the report also includes some principal findings, such as how the fragmented governance of the water industry – including the siloed nature of managing wastewater, drinking water and stormwater separately – is a contributing factor to the nation’s formidable challenges. NACWA plans to meet with EPA soon to discuss whether and how it will act to address the NAPA report. 

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

EPA Updates

NACWA Participates in EPA Intergovernmental Meeting Focused on Water Issues

NACWA took part in a meeting, hosted by EPA on November 8, with intergovernmental partners that focused on two key water priorities for the Agency.  Lee Forsgren, EPA’s Deputy Assistant Administrator for Water, discussed the Agency’s work to advance infrastructure funding through the Water Infrastructure Finance and Innovation Act (WIFIA) program, as well as its effort to rewrite the Waters of the United States (WOTUS) regulations governing jurisdictional waters under the Clean Water Act (CWA). Read the full story in the Clean Water Current.

NACWA Supports Tone, Content of Draft EPA Strategic Plan

NACWA expressed its support for elements of EPA’s draft Strategic Plan for 2018-2022 in comments filed October 31. NACWA specifically highlighted the plan’s increased focus on compliance assistance instead of immediate enforcement and discussion of local governments as partners in achieving environmental protection. The plan, which is required by law, has come under fire for its lack of detailed metrics and any mention of climate change. EPA is expected to finalize the plan in early 2018. 

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

Pretreatment & Pollution Prevention

NACWA, WEF Support DC Wipes Law with Amicus Brief

NACWA and the Water Environment Federation (WEF) filed an amicus brief on November 13 to support DC’s Nonwoven Disposable Products Act of 2016, the first law in the US to address the problems caused by flushable and non-flushable wipes.  Kimberly-Clark Corporation, a leading manufacturer of flushable wipes filed a lawsuit in federal court on September 15, seeking to thwart the law, which is set to take effect on January 1, 2018.  Oral arguments for the preliminary injunction will be held on December 13.  Read the full story in the Clean Water Current.

Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.

Regulatory Reform

Association Meets with EPA Policy Officials on Regulatory Reform

NACWA met with senior officials from EPA’s Office of Policy on Nov. 20 to discuss the Association’s comments on the Agency’s regulatory reform initiative.  Samantha Dravis, the Associate Administrator of the Office of Policy, led the meeting, and a number of senior members from the Office of Water were present as well.  Dravis also serves as the lead official for EPA’s regulatory reform efforts. Read the full story in the Clean Water Current.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

NACWA Collaborates on Survey to Explore Regulatory Barriers to Innovation

NACWA is collaborating on an EPA-funded study seeking perspectives of utility managers and decision makers on the effects of regulation on innovation and new technology implementation in the municipal wastewater treatment sector.  The research is led by UC Berkeley and ReNUWIT—Reinventing the Nation’s Urban Water Infrastructure—with communication and outreach support from NACWA, as well as the Water Environment Federation, Water Environment & Reuse Foundation, and the California Association of Sanitation Agencies.  EPA’s Office of Water is supporting this work in an effort to better identify where its Clean Water Act regulations may be inhibiting innovation.  Click here to take the survey now.  NACWA’s advocacy with EPA will also be informed by the survey and we encourage our members to provide their feedback. 

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

Water Quality/Quantity

NACWA Asks EPA to Consider Impacts and Alternatives for Flea Pesticides; Supports Labeling for Swimming Pool Pesticides

NACWA recently provided input to EPA on the registration reviews of indoxacarb, a pesticide used in pet flea control products.  Products containing indoxacarb can be washed into the sewer system directly, or can transfer to household and other surfaces, and then be washed into the sewer.  Indoxacarb can potentially pass through wastewater treatment plants and have high toxicity in the aquatic environment. Read the full story in the Clean Water Current.

NACWA also sent a letter to EPA supporting the Agency’s proposed label language for sodium, calcium, and potassium hypochlorite products, which are used in swimming pools and spas.  The label language will ask users to contact their local sanitary sewer and storm drain authorities to determine proper discharge instructions before draining a pool or spa. 

Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.