Regulatory Update

Regulatory Perspectives

NACWA’s Comprehensive Advocacy Strategies on PFAS Are Bearing Fruit at EPA and in Congress… But There’s More to Do

NACWA’s consistent efforts to leverage its regulatory, legislative and legal advocacy to carve out PFAS protections for water systems both at EPA and on Capitol Hill are noticeable and gaining traction, even with the arrival of EPA’s  final rulemaking on April 19 to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

In releasing its final rulemaking, EPA simultaneously issued an Enforcement Discretion and Settlement Policy memo. The memo notes that “EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, …publicly owned treatment works, municipal separate storm sewer systems, … and farms where biosolids are applied to land.”

This language is a product of NACWA’s regular and proactive engagement with EPA on the consequences that CERCLA will have on the public clean water community. While EPA has continued to assert that it cannot provide exemptions from CERCLA liability—that we must take that ask to Congress—the Agency has addressed some of NACWA’s concerns where it believes it does have authority through this memo.

Shifting to Congress, momentum toward a bipartisan solution is resonating with a growing segment of Congress. In recent weeks, bipartisan legislation (H.R. 7944) was introduced in the U.S. House by Representatives Curtis (R-UT) and Gluesenkamp Perez (D-WA) that would provide statutory liability protection for water systems. The House bill mirrors S. 1430 led by Sen. Lummis (R-WY) last year, which was recently the focus of a Senate Environment and Public Works Committee hearing at which NACWA Board Member Michael Witt testified. This hearing helped clarify for the Committee the pressing need for a CERCLA PFAS exemption for water systems, and with EPA’s release of the final rule and memo, NACWA is urging continued bipartisan talks toward a legislative solution that would build upon EPA’s memo and provide water systems protection from third party lawsuits.  

It is truly unfortunate that EPA placed clean water agencies and other passive receivers in this position in the first place. The manufacturers of these chemicals are the reason PFAS is pervasive in commerce and subsequently in the environment, and in addition to holding the true polluters accountable, we need a greater focus on source control.

It’s even more unfortunate that NACWA’s and other organization’s numerous conversations with the White House Office of Management and Budget (OMB) on this rule’s economic impacts failed to move the needle. In issuing the final rule, EPA blatantly disregarded the true costs of CERCLA’s liability scheme on clean water agencies and ratepayers. The final rule paves the way for extensive litigation and future site cleanups where costs could be pushed onto passive receivers like public clean water agencies.

EPA’s hazardous substance designation for PFOA and PFOS will be effective 60 days after its forthcoming publication in the Federal Register. NACWA will not be stepping off the gas – quite the opposite. NACWA continues to urge Congressional action and is also weighing legal options. We are working around the clock with various partners, including the Water Coalition Against PFAS and other stakeholders, to consider all possible advocacy actions with EPA, in Congress and in the courts.

Please continue your outreach to your Congressional offices on this issue. To help utilities navigate the PFAS landscape, NACWA has an updated PFAS considerations document and a communications toolkit. Specific to CERCLA designations, NACWA also developed a reportable quantities calculator to help determine whether a utility’s effluent discharges or biosolids generation could trigger CERCLA PFAS reporting requirements. 

NACWA is unique in the water advocacy space given the strength of our legislative, regulatory, legal, and communication advocacy skills, and we are bringing all those formidable resources to bear on your behalf to deal with the growing challenge posed by PFAS. We are already seeing the beneficial results of our efforts, but there is much more work to do. Please reach out to any member of the NACWA Government Affairs staff with questions or concerns.

--Emily Remmel, NACWA Senior Director of Regulatory Affairs

Top Stories

NACWA Meets with EPA Office of Water Political and Career Staff

NACWA staff had two meetings on April 17 and April 18 with U.S. EPA Office of Water leadership to discuss public clean water agency priorities. 

On April 17, NACWA’s government affairs staff had its monthly meeting with top staff from the Office of Wastewater Management. The overarching theme that NACWA raised was the growing water affordability strains, regulatory burdens, staffing, and operational challenges that utilities face. NACWA also discussed EPA’s Water Affordability Needs Assessment process which recently got underway to comply with a Congressional mandate that NACWA requested as part of the Bipartisan Infrastructure Law.  

Additionally, NACWA flagged concerns that the Association is tracking related to the Supreme Court’s decision on municipal impact fees in Sheetz vs. County of El Dorado, and expressed appreciation for EPA’s collaborative efforts on cybersecurity with the clean water community. As always, NACWA appreciates the opportunity to raise priorities and get timely updates from EPA.  

On April 18, NACWA staff met with the recently-appointed Acting Assistant Administrator of Water, Bruno Pigott, and his key team members. Similarly, an overarching theme from NACWA was the strain many public clean water agencies face from compounding challenges – and how clean water utilities must be viewed as true partners with the federal and state governments to maintain and expand progress in clean water and public health protection. Other discussion items included efforts to elevate success stories from investment in water and continue productive dialogues on water affordability and biosolids management.  

NACWA greatly appreciates the opportunity for ongoing dialogue on critical priorities with the EPA. Contact Kristina Surfus, NACWA’s Managing Director of Government Affairs, to discuss further.   

EPA Initiates Water Affordability Needs Survey

EPA’s Office of Water held a series of three informal workshops in late March and April and is planning a call with the general public in May to solicit ideas and input for its planned Water Affordability Needs Assessment. NACWA and others in the water sector advocated for the Needs Assessment, which EPA is required to complete as part of the 2021 Bipartisan Infrastructure Law.  

At a high level, the Needs Assessment is focused on providing a national picture of the impact of water service bills on low-income households. Congress viewed it as a necessary precursor to potentially establishing a permanent low-income assistance program, and EPA will be completing a Report to Congress that may inform future debate around federal investment in water in general and around low-income assistance in particular. Given this, it is critical that EPA develop a meaningful assessment that accurately captures the state of need.

NACWA and its Affordability Task Force are engaging with EPA directly for further focused discussion on how the Association believes the assessment should be structured. The Association will also make sure EPA is considering previous work completed by the water sector and led by NACWA on this issue, including last year’s Low-Income Water Customer Assistance Program Assessment Study.

Based on the first suite of calls, it is clear EPA looks to build upon work already done by associations and other experts in this realm. However, EPA has a short timeline, intending to complete this work by October 1, 2024. NACWA will be providing resources and input to EPA in the near term and working to help ensure this effort accurately reflects the true water affordability need and moves the ball forward on elevating the water affordability challenge.

NACWA will update members on developments and provide details on the May public input session when available. In the meantime, any members with questions can contact Kristina Surfus, NACWA’s Managing Director of Government Affairs.  

Air Quality

NACWA Asks EPA to Reconsider California Plan for Ozone Emissions

NACWA asked EPA to reconsider its disapproval of the South Coast Air Basin Contingency Measure Plan for the 1997 Ozone Standard in April 3 comments, echoing requests by the California Association of Sanitation Agencies (CASA) and NACWA public agency members in California. 

EPA's disapproval of the plan could affect public wastewater agencies in California and potentially in other parts of the country. Although emissions from the stationary sources regulated by the California Air Resources Board (CARB) have been reduced by 70 percent relative to 1997 levels, the federally regulated sources – including aircraft, ships, trucks, and locomotives – have only reduced emissions by 15 percent.  Read the full story in the Clean Water Current.

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

Clean Water Funding/Finance

EPA Releases Two New Reports Highlighting Innovation Through the CWSRF

EPA issued two new reports in April that highlight federal efforts through the Clean Water State Revolving Fund (CWSRF) to finance various technologies to assist communities in addressing growing clean water challenges. Development of these reports was spurred in large part by NACWA’s advocacy efforts.

These new reports released by EPA’s Office of Wastewater Management identify more than $12.5 billion in innovative projects through the CWSRF to ensure clean water while providing guidance to help utilities build intelligent water systems with established technologies. Details on each report are below:

• Clean Water State Revolving Fund: Investing in Communities Through Water Innovation
  This report provides an overview of CWSRF investments representing a broad mix of innovation across the nation for different types of communities, different regions, and different types of technology.
  
  
• Investing in Intelligent Technology: Facing Today’s Wastewater Challenges with the Future in Mind 
  This document is for communities that want to learn how other communities of various sizes, locations, and demographics are developing intelligent water systems and using CWSRF money to invest in technologies today for a more efficient and resilient water system in the future. The document provides a brief overview of select intelligent technologies such as telemetry, advanced metering, real-time controls, and Supervisory Control and Data Acquisition (SCADA) systems.

Contact Matt McKenna at 202/533-1825 or Matt McKenna.

Emerging Contaminants

EPA Designates PFOA, PFOS As Hazardous Substances

On April 19, U.S. EPA moved to formally designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). This action marks the first time that EPA has utilized its authority to directly designate hazardous substances under CERCLA Section 102(a) without those substances first being designated as hazardous or toxic under the primary federal air, water, or toxics statutes.  

The Agency also published a corresponding enforcement discretion memo outlining that “EPA does not intend to pursue entities where equitable factors do not support seeking response actions or costs under CERCLA, including, but not limited to, community water systems and publicly owned treatment works, municipal separate storm sewer systems, publicly owned/operated municipal solid waste landfills, publicly owned airports and local fire departments, and farms where biosolids are applied to the land. For these same parties, EPA can use CERCLA statutory authorities when appropriate to enter into settlements that provide contribution protection from third party claims for matters addressed in the settlement.” Read the full story in the Clean Water Current.

Contact Kristina Surfus at 202/833-4655 or Kristina Surfus or Amanda Aspatore at 202/833-1450 or Amanda Aspatore.

NACWA Submits Comments on EPA’s RCRA Hazardous Constituent Listing Proposal

In comments submitted to the Agency on April 8, NACWA supported EPA’s proposed rulemaking to list certain PFAS as hazardous constituents under the Resource Conservation and Recovery Act (RCRA).  

A hazardous constituent listing under RCRA is narrow, and NACWA believes the corresponding application of RCRA’s Corrective Action framework is the right environmental response tool to address localized significantly contaminated sites from particular treatment, storage, and disposal facilities.  

NACWA also noted in its comments that in crafting RCRA, Congress clarified that solid or dissolved materials in domestic sewage are not solid wastes as defined under RCRA and, therefore, cannot be considered RCRA hazardous wastes. The exclusion covers industrial wastes discharged to domestic sewer systems, even if the industrial wastes themselves would otherwise be regarded as hazardous wastes.  Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202.533.1839 or Emily Remmel.

EPA Releases Updated Destruction and Disposal Interim Guidance for PFAS

The U.S. Environmental Protection Agency (EPA) released its new Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances for public comment on April 8.  

This is EPA’s second iteration of the guidance document and is required under the National Defense Authorization Act of 2020. The interim guidance highlights the state of the science of PFAS destruction and disposal techniques and identifies three large-scale capacity technologies for managing PFAS-laden materials: thermal destruction, landfilling, and underground injection. Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202.533.1839 or Emily Remmel.

Pretreatment & Pollution Prevention

NACWA Asks DEA to Evaluate Environmental Impacts of Pharmaceutical Disposal Methods

In April 1 comments, NACWA asked the Drug Enforcement Agency (DEA) to thoroughly evaluate the effectiveness and environmental impacts of methods for the destruction of unused pharmaceuticals. The DEA published an advance notice of proposed rulemaking to seek information about destruction methods other than incineration that will meet the Agency’s standard of rendering unused pharmaceuticals unavailable and unusable for practical purposes.   

NACWA 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. 

EPA Publishes Draft POTW Influent Study in Federal Register for 60-Day Public Comment

The U.S. Environmental Protection Agency (EPA) is formally moving forward with its proposed POTW Influent Study in an Information Collection Request (ICR) notice published on March 29 in the Federal Register.  

NACWA has engaged with the Agency for over a year on concerns with its proposed study design and ways to improve or reduce the burden on clean water utilities. The Agency has revised its initial study design in some ways due to concerns raised by NACWA members, but NACWA and its members will want to comment on the proposal again before the May 28 deadline. Read the full story in the Clean Water Current.

NACWA will be submitting comments to EPA. If members have additional input, please contact Cynthia Finley, NACWA’s Director of Regulatory Affairs, or Emily Remmel, NACWA’s Senior Director of Regulatory Affairs. 

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