September 2021 Regulatory Update

Oct 1, 2021

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the September 2021 Regulatory Update.

NACWA Perspectives

EPA Makes Initial CWA Moves on PFAS; A Sign of What’s to Come?

The Biden Administration’s EPA, in two recent regulatory initiatives, could be forecasting how it plans to deal with PFAS within the Clean Water Act (CWA) context moving forward. Given these developments it has never been more important for the public clean water community (and the water sector more broadly) to step up its engagement with EPA to ensure political pressure and halfhearted scientific processes do not drive regulatory policy.

The first regulatory initiative EPA has set in motion is the approval of a single-laboratory validated analytical method. On September 2, EPA and the Department of Defense (DoD) announced Method 1633 is available to test for 40 different PFAS compounds across a range of environmental media including wastewater, surface water, biosolids and others.

The agencies released the methodology for use “due to a large number of public and stakeholder requests,” but EPA and DoD did not publish the corresponding validation study report on the precision, bias, or sensitivity of this method. The release of the method before the report runs counter to longstanding agency policy and is especially concerning because EPA has approved it for use in individual National Pollutant Discharge Elimination System (NPDES) permits.

It is clear that both EPA and DoD are under public and political pressure to address PFAS contamination, and while NACWA is still reviewing Method 1633, the agencies should strive to promote scientific confidence for both the regulated community and the public before allowing certain stakeholder pressure to creep into broader policy initiatives. While this method cannot be used at this time for CWA compliance or subsequent enforcement actions, EPA has made it clear that it can be used now in NPDES permits for monitoring purposes.

The municipal clean water community passively receives PFAS in part per trillion concentrations from industrial and domestic discharges to the collection system, so having the most accurate methodology that provides the greatest scientific confidence should be among the agencies’ priorities before moving down a regulatory path. When measuring contaminants at part per trillion concentrations, method sensitivities, laboratory bias, and equipment precision are all that much more important to have the scientific confidence that the concentrations found in the lab truly reflect the concentrations found in our environment. EPA and DoD should immediately release the single-laboratory validation report and open a docket for public comment.

Confidence in the laboratory method is essential for EPA’s second PFAS-related regulatory initiative, developing effluent limitation guidelines (ELGs) and pretreatment standards for industries that discharge wastewater containing PFAS. EPA announced in its Preliminary Effluent Guidelines Program Plan 15, published on September 14, that it will be developing ELGs and pretreatment standards for the Metal Finishing Category and the Organic Chemicals, Plastics & Synthetic Fibers Category to address PFAS discharges (see story below). EPA will also continue studying other industries to determine if ELGs for PFAS are warranted. 

NACWA supports EPA’s efforts to control PFAS at its sources via a “polluter pays” model using the ELG program. Since an approved PFAS test method for wastewater is needed to implement ELGs and pretreatment standards – and this implementation will likely require significant investments from the industries and utilities – EPA must ensure that its method can be fully trusted. 

In addition, EPA must create ELGs and pretreatment standards that can be adapted as new treatment technologies emerge, and as the risk of PFAS in wastewater is better understood. The science surrounding PFAS continues to develop, and will likely continue for many years, but the process to update or change ELGs is slow, often lasting several years. Human health and the environment will be better protected, and resources will be better used, if industries and utilities can incorporate the most up-to-date science to control PFAS discharges.

NACWA is closely following these regulatory actions and will provide input to EPA at multiple times during their regulatory processes.  It is vital for NACWA members to contribute their expertise to these Association efforts.  Please contact Emily Remmel or Cynthia Finley, NACWA’s Directors of Regulatory Affairs, if you would like to get involved.

Top Story

EPA Rescinds Maui Guidance, Raises New Questions on NPDES Implementation

In a memorandum sent on September 15 to the EPA Regions and Water Division Directors, EPA Assistant Administrator for the Office of Water Radhika Fox revoked the previous administration’s January 2021 guidance document, “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit (NPDES) Program.”

Citing to both substantive flaws and a lack of sufficient interagency coordination, the two-page memorandum takes the long-anticipated step of rescinding the Trump-era guidance on how to apply the landmark Maui decision, in which the Supreme Court outlined seven factors to consider when determining if indirect discharges from a point source to “waters of the United States” require NPDES coverage because they are “functionally equivalent” to direct discharges.

The now-rescinded guidance had been derided by environmental organizations as creating loopholes for dischargers to evade Clean Water Act permitting requirements, particularly its identification of system design and performance as an “eighth factor” to consider in any “functional equivalent” analysis. 

Importantly, EPA’s new memo states that considering system design and performance in a Maui analysis inappropriately “introduces an element of intent” that is not consistent with the Supreme Court’s decision. However, NACWA had supported consideration of the design and performance of features such as green infrastructure in proactively determining whether NPDES permits are necessary, and it is unclear how the statements in EPA’s memo could impact on-the-ground permitting determinations. 

The guidance also reiterates EPA’s position that, consistent with the Maui decision, the existence of a state groundwater program that may regulate a discharge does not obviate the need for applying the Maui test to determine whether an NPDES permit is required. Such language appears to be intended to address claims made by industry in on-going litigation that discharges subject to regulation under state groundwater programs categorically do not require NPDES coverage.   

The memo states that EPA is evaluating appropriate next steps and will for the time being make NPDES determinations on a case-by-case basis, which had long been agency practice prior to the issuance of the Maui decision. 

NACWA will continue to evaluate the memorandum and will keep members apprised of any developments as they occur. Please contact Amanda Aspatore, NACWA’s Chief Legal Counsel, with any questions.  

Emerging Contaminants

Water Sector Weighs In on EPA’s TSCA Proposed Rulemaking to Require Reporting and Recordkeeping for PFAS

In comments submitted to EPA on September 24, NACWA, the American Water Works Association (AWWA), and the Association of Metropolitan Water Agencies (AMWA) offered support for the Agency’s efforts to use the Toxic Substances Control Act’s (TSCA) Section 8(a)(7) reporting and recordkeeping requirements as a means to broaden the universe of understanding on PFAS, where it has been discharged, and its uses.

Both the drinking water and wastewater community have had to quickly respond to greater regulatory initiatives on PFAS—including increased monitoring requirements. This proposed rulemaking would require manufacturers (including imports and small businesses) that have manufactured PFAS in any year since January 1, 2011 to report information to the Agency including use, production volume, disposal practices, and worker exposure and hazard data.

Read the full story in the Clean Water Current.

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

Pretreatment & Pollution Prevention

EPA Announces PFAS Rulemakings in Preliminary Effluent Guidelines Plan

EPA announced its Preliminary Effluent Guidelines Program Plan 15 in the September 14 Federal Register. The Plan is published every two years to outline EPA’s planned studies and rulemakings related to effluent limitation guidelines (ELGs) and pretreatment standards for industrial dischargers. The Plan, an FAQ, and other documents are available on EPA’s website

In the Preliminary Plan, EPA announced rulemakings to control discharges of PFAS from two industrial categories. The ELGs will be revised for the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) category for facilities manufacturing PFAS, and for the Metal Finishing category to address discharges from chromium electroplating facilities. EPA stated that it would continue its Multi-Industry PFAS Study, and that detailed studies would be initiated to examine PFAS discharges for landfills and for textile and carpet manufacturers. Read the full story in the Clean Water Current.

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

Pretreatment Committee to Address ELG, Water Reuse Issues

The NACWA Pretreatment & Pollution Prevention Committee will be holding a meeting on Tuesday, October 5, 2:00-3:00 pm ET to discuss EPA’s Preliminary Effluent Guidelines Program Plan 15 and NACWA’s comment on the Plan, which are due October 14.

The Committee also has a workgroup that will meet for the first time on October 4 and will be developing recommendations for how pretreatment standards can be created for PFAS discharges. Although these recommendations will be developed to apply to any industry, they are particularly important now as EPA begins the process for the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) and Metal Finishing categories. 

Another workgroup of the Committee, the Pretreatment/Reuse workgroup, is continuing its efforts on the pretreatment action item in EPA's Water Reuse Action Plan. This action is to "enhance wastewater source control through local pretreatment programs to support water reuse opportunities for municipal wastewater." The workgroup met on September 27 to hear a case study from El Paso Water, the first in a series of case studies that will be used to build a resource library for utilities working on water reuse. 

If members would like to join the Committee and/or participate in the upcoming committee meeting, please contact Cynthia Finley.

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

Regulatory Policy

NACWA Files WOTUS Comments with EPA & Army During Pre-Proposal Stage

NACWA submitted initial comments to EPA and the U.S. Army Corps of Engineers on September 20 urging the agencies to maintain existing exclusions for waste treatment systems, stormwater control features, wastewater recycling structures, and groundwater as the agencies begin another effort to revise the definition of “Waters of the United States” (WOTUS).

EPA and the Army have initiated a federalism consultation on the new rulemaking process. This intergovernmental consultation process is a key step when an agency proposes (or in this case pre-proposes) a regulatory rulemaking that could have federalism implications under Executive Order 13132. Read the full story in the Clean Water Current.

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

Security and Emergency Preparedness

White House Action on Industrial Control Systems Security

Following several recent high profile cybersecurity incidents, the White House in July released its National Security Memorandum on Improving Cybersecurity for Critical Infrastructure Control Systems, outlining a plan to promote industrial control system (ICS) security in critical infrastructure sectors.

Among its goals is to urge the electricity, pipeline, water and wastewater, and chemical sectors to voluntarily deploy technologies to collect and share ICS monitoring data. This “ICS Initiative” has already begun with the electricity and pipeline sectors, with providers utilizing various device and platforms for collecting and sharing their data. Read the full story in the Clean Water Current.

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

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