November 2019 Regulatory Update

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with this Regulatory Update, which covers activities during November 2019.

As PFAS Movie Hits Theaters, NACWA Utility Considerations Resource Document Released

NACWA released a new document, A Clean Water Utility’s Guide to Considering Source Identification, Pretreatment, and Sampling Protocols for PFAS, on November 25 designed to provide helpful information to utilities that are dealing with growing questions around PFAS chemicals in wastewater and biosolids.

This document highlights key actions that several utilities have already considered in response to growing federal and state regulatory pressure, including several states that are pushing for voluntary or mandatory testing for PFAS in wastewater and/or biosolids.  The document is intended to help the broader clean water utility community in understanding how to tackle these complex questions―like how to identify industrial PFAS sources, what pretreatment steps utilities can take, what challenges utilities may encounter with sampling, and how to communicate PFAS issues with the public. 

The publication of this document is particularly relevant given the nationwide release of Dark Waters―a PFAS-centric movie―that brings to light the legacy contamination of water supplies by DuPont’s Teflon manufacturing in Parkersburg, West Virginia. The film features Mark Ruffalo and Anne Hathaway and is likely to further raise public concerns over PFAS in drinking water supplies across the country and what environmental regulators and clean water utilities are doing to protect communities.

While the document does not provide any legal advice or establish any recommended best practices on PFAS issues, it may provide some helpful considerations for utilities seeking information on how to address this challenging topic. It was developed by NACWA’s PFAS Workgroup, which consists of NACWA member utilities that are already facing state regulatory and legislative actions. The workgroup’s mission is to help clean water utilities that have not yet addressed similar PFAS issues best prepare their utility to respond and effectively communicate with the media and public on the complexities of the PFAS challenge.

NACWA has a wealth of PFAS resources for member utilities, including media talking points, a background webinar, an opinion editorial for use in local media, and a variety of legislative and regulatory documents. 

Utilities with any questions about PFAS or NACWA’s efforts can contact Emily Remmel, NACWA’s Director of Regulatory Affairs. 

Top Story

Supreme Court Wrestles with Pivotal Clean Water Case

The US Supreme Court held oral arguments on November 6 in the most important Clean Water Act litigation to reach the High Court in over a decade. The central legal question at issue is whether the transmittal of pollutants via groundwater can trigger Clean Water Act (CWA) liability. 

The case, Hawaii Wildlife Fund v. County of Maui, focuses on whether NACWA Member Agency the Maui County Department of Environmental Protection must have a CWA discharge permit for its underground injection wells that dispose of highly treated wastewater. Two lower federal courts have agreed with environmental activist plaintiffs in the case that such permits are necessary. If the Supreme Court agrees with this interpretation, which is not supported by the text of the CWA, it could lead to a dramatic increase of the CWA permitting program and have significant negative impacts on public clean water utilities. 

NACWA has been an active participant in the case in support of its utility member in Maui, including filing a brief with the Supreme Court pushing back against the environmental activist position. 

NACWA is closely following the issue and released an Advocacy Alert with an analysis of the proceedings. A decision from the Supreme Court is not expected until next year.

Please contact Amanda Waters, NACWA’s General Counsel, with any questions.

Biosolids

NACWA Participates in Biosolids Convening

Dan Thompson, Chair of NACWA’s Biosolids Management Committee, and Division Manager, Business Operations for the City of Tacoma’s Environmental Services Department, as well as NACWA staff, participated in a two-day convening in Alexandria, Virginia, November 20-22, to discuss the current needs and future challenges facing the national biosolids program.

The Water Environment Federation (WEF) organized the convening of biosolids managers, experts, academics and others to discuss what is needed in the areas of policy/regulations, research and communications to ensure the water sector continues to have sustainable and long-term options for managing biosolids. WEF hopes to release the summary of the convening in advance of its Residuals and Biosolids Conference next spring.

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

Emerging Contaminants

EPA Adds Five PFAS Compounds to Toxicity Assessment Under IRIS Program

EPA released its Systematic Review Protocol on November 7 for five additional PFAS chemicals. The Systematic Review Protocol, which outlines how the Integrated Risk Information System (IRIS) assessments will be conducted including specific scientific procedures and approaches for these five additional constituents, is open for public comment through December 23, 2019.

As previously noted under EPA’s PFAS Action Plan, the Agency is following its proposed timeline to better understand the potential human health impacts of a variety of PFAS chemicals by 2020. EPA is currently reviewing the toxicity assessments of GenX and PFBS and is now adding PFBA, PFHxA, PFHxS, PFNA, and PFDA to the list of chemicals that will be assessed under the IRIS Program. Read the full story in the Clean Water Current.

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

Energy & Resource Recovery

NACWA's Energy Workgroup Discusses Net Zero

The NACWA Energy Workgroup held a web meeting on November 7 to discuss the current status of food waste co-digestion under the Renewable Fuel Standard and a case study on a public-private partnership to generate energy with anaerobic digestion at publicly owned treatment works. Read the full story in the Clean Water Current.

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

Security and Emergency Preparedness

Water Sector Coordinating Council Discusses Strategy for Cybersecurity and Critical Lifeline Status of Sector 

The Water Sector Coordinating Council (WSCC) met on November 13 to discuss security and other related issues that are impacting the water sector. 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. 

During both meetings, cybersecurity was a major topic of discussion. Representatives from the Cybersecurity & Infrastructure Security Agency (CISA) provided an update on activities and participated in a discussion on how cybersecurity of drinking water and wastewater utilities could be improved. Read the full story in the Clean Water Current.

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

Stormwater

EPA Stormwater Funding Task Force to Host Public Forum

EPA announced on November 19 that it will be holding two teleconference calls to brief the public on the continued development of a report on the funding aspects of stormwater. The teleconferences are scheduled for Wednesday, December 4 from 3:00 to 5:00 pm ET and Wednesday, December 18, from 12:00 to 2:00 pm ET.

The Agency’s stormwater task force was developed in response to congressional requirements in the 2018 Water Resources Development Act (WRDA) as a measure to better understand the diverse yet limited funding opportunities and examples to date for stormwater projects. Read the full story in the Clean Water Current.

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

Water Quality

EPA Extends Comment Period for Notice on Water Quality Trading

EPA extended the comment period for its recent notice on water quality trading, published in the Federal Register in September. EPA will now accept comments until December 18.

NACWA is developing comments on the notice that will generally support the additional flexibility EPA wants to create around the issue of nonpoint source baselines. Read the full story in the Clean Water Current.

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

Lead & Copper Rule Published in Federal Register

EPA’s proposed new Lead and Copper Rule was published on November 13 in the Federal Register, initiating a 60-day public comment period that will close January 13, 2020. 

As previously reported, this proposal could impact clean water utilities due to its encouraged use of orthophosphate as a corrosion control technology (CCT). NACWA had previously outlined concerns with EPA over a standardized approach that encourages orthophosphate as the optimal method of corrosion control. NACWA underscored that downstream clean water utilities are not only witnessing more stringent effluent limits for phosphorus but are also bearing the cost of excess nutrient removal from upstream phosphorus inputs. Read the full story in the Clean Water Current.

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