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Regulatory Update
August/September 2024 Regulatory Update
Regulatory Perspectives
The PFAS Media Frenzy and Where Focused Advocacy is Needed
Every time I open my media folder – a collection of daily news articles on clean water utility highlights and achievements – I am bombarded by an increasing number of stories on biosolids and PFAS. And while the focus on PFAS the last several years has grown mostly due to the U.S. EPA’s efforts on drinking water and actions in various states, it seems that the limelight of PFAS has now shifted to the clean water side – and biosolids in particular.
What’s troubling is that many of these press articles, some from respected national news outlets and some from bowels of internet blogs, are either focused on just one element of the bigger picture or are so misleading in fact and truth – that one could easily go down an erroneous path to believing municipal clean water utilities are not doing a darn thing to wrap their arms around a problem so complex, so colossal, and so everchanging with evolving science.
That is simply not accurate.
Public clean water utilities are doing a lot to understand the extent of the PFAS issue in their communities – something that varies greatly by community. While utilities may act proactively, the reality is that we rely on standards and guidance from EPA. Utilities are pushing for EPA to continue the regulatory path and finalize its biosolids risk assessment to provide benchmarks and greater certainty on what concentrations of PFAS are protective of human health and the environment. Could certain regulatory processes move faster? Possibly, but with a suite of chemicals so novel and unique in nature, it takes time to get it right which is what communities deserve. Could EPA and other executive agencies also be more aggressive and proactive at looking into PFAS risks across the landscape of consumer products used daily by you and me? Absolutely.
The recent media frenzy aside, here's the real scoop on what we expect from EPA this fall and where NACWA and its utility members need to focus:
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EPA’s Report on “Issues Related to PFAS and Biosolids” release is imminent with the end of EPA’s Fiscal Year on September 30. This report summarizes a series of discussions organized by EPA with direction from NACWA. It will not reflect official EPA recommendations or positions but demonstrates that EPA, state regulatory authorities, public clean water utilities, and members of the solid waste industry came together and the state of discussions and concerns around the challenges of managing PFAS in biosolids and the need for practical solutions and greater collaboration and communication from EPA. It is a starting point and hopefully not the end point to conversations on maintaining all current management options for biosolids.
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EPA’s second draft comment period for Destruction and Disposal Guidance closes on October 15. While this is an informational update on where the Agency has identified available and effective methods to dispose and destroy PFAS, it does zero favors for the wastewater community dealing with low levels of PFAS largely stemming from domestic source contributions and large volumes of wastewater managed daily. It fails to suggest any viable technologies for biosolids management that are contaminated with PFAS other than thermal destruction and landfilling – both of which are expensive, not always practical and definitely not sustainable.
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EPA’s finalized Risk Assessment Levels for PFOA and PFOS are expected before the end of 2024 and will guide the Agency’s next actions, if any, to regulate PFAS in biosolids. The risk levels will provide numeric values for each of the various possible exposure pathways through which a farmer could be exposed and at risk of PFAS found in biosolids -– under the most conservative hypothetical of circumstances. These numbers are anticipated to be quite low and likely will spawn media coverage. And, while they are not regulatory in nature – they are merely risk levels – EPA will then go down a full-blown risk characterization that will include mitigation strategies. Whether those strategies are pollutant minimization plans or Clean Water Act Part 503 standards or something else is yet to be determined.
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EPA Water Quality Criteria for Aquatic Life and Human Health for PFOA and PFOS (and other PFAS possibly) have been on the table for release for quite some time now. EPA just released the final recommended aquatic life criteria for PFOA and PFOS on October 1 in a pre-publication form. It also includes benchmark values for eight other PFAS. New research on the impacts of PFAS to mayfly life histories have impacted the release of the aquatic life criteria, and from what NACWA understands, criteria values, if adopted as water quality standards should not be an issue for utilities to meet. However, the final recommended values are significantly different for PFOA and PFOS in acute water column. NACWA is interested if members will have difficulty meeting these criterion values if adopted into water quality standards and enforceable. The human health water quality criteria will be different and will likely be very stringent when adopted into water quality standards. Based on the cancer slope factors and reference doses derived with EPA’s Maximum Contaminant Level, these clean water criteria are coming, and soon.
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EPA will begin promulgating Method 1633 for detecting PFAS in aqueous solutions and biosolids early in 2025, though it will take at least a year to finalize and amend the Clean Water Act’s Part 136 Methods. Meanwhile, NACWA has become aware that there are emerging issues with sample results, mainly with recovery of spikes used in the analysis. With laboratory capacity, cost, and delays in using Method 1633 also all being issues – concerns are growing all around. It is critical that sampling results are accurate and replicable, and these uncertainties must be figured out before any methods are finalized, adopted into the Clean Water Act and enforceable in National Pollutant Discharge Elimination System (NPDES) permits.
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EPA’s POTW Influent Study questionnaire will be sent to nearly 400 clean water utilities in early 2025 and a select group of 100 or more utilities will begin sampling for PFAS in their influent and upstream thereafter. NACWA was successful in getting the biosolids sampling pushed back to 2026. We are still awaiting the second-round comment period on the Study and while EPA’s timeline is to start the Study in the new year, continued delays and the Presidential Election could have an impact on timing and whether the Study even gets off the ground.
This is a huge slate of action for EPA related to PFAS and clean water, and NACWA continues to keep its finger on each of these regulatory steps. Our communications, legislative and legal teams are also all hands-on deck. NACWA recently filed a Motion to Intervene on EPA’s behalf in a lawsuit that would force EPA’s hand to regulate PFAS in biosolids. Our legislative team continues to work on Capitol Hill to advance legislation to provide CERCLA liability protections and other PFAS passive receiver priorities. And, our communications efforts are mounting with opinion editorials from utilities and farmers on the realities of managing PFAS in biosolids. NACWA will also be releasing an updated comprehensive communications strategy to help utilities, the public and media better understand what EPA is doing ahead of the Agency's anticipated release of biosolids risk levels later this year.
If members have questions, contact Emily Remmel, NACWA’s Senior Director of Regulatory Affairs at 202/533-1839.
Top Stories
NACWA Shares Key Clean Water Priorities with Presidential Campaigns
As the 2024 presidential campaign season ramps up, NACWA is urging the candidates to prioritize critical clean water infrastructure issues.
NACWA submitted letters on September 10 to Vice President Kamala Harris and former President Donald Trump outlining several pressing challenges that affect public health, the environment, and the economic stability of American communities and requesting that the candidates highlight clean water issues as part of their campaign messages. With the 2024 election drawing near, NACWA is committed to ensuring that clean water issues remain at the forefront of the national conversation.
As clean water utilities nationwide grapple with rising costs, aging infrastructure, and increasing regulatory demands, federal leadership and investment are vital to maintaining access to safe, reliable, and affordable water services for millions of Americans.
The key priorities NACWA highlighted to former President Trump include and Vice President Harris include:
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Water Affordability
Across the U.S., rising water and wastewater service rates have created significant financial burdens for low-income households. NACWA is calling for the establishment of a permanent Low Income Household Water Assistance Program (LIHWAP) to provide much-needed relief to vulnerable communities.
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Infrastructure Investment
The EPA’s 2022 Clean Watershed Needs Survey estimates that there are over $630 billion in unfunded water infrastructure needs across the country. Increased funding for key programs like the Clean Water State Revolving Fund is critical to meeting these needs, especially for wastewater treatment and stormwater management.
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PFAS Contamination and Liability
PFAS pose one of the greatest environmental and public health challenges of our time. NACWA urges federal policies that ensure polluters, not the public or utilities, are held accountable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and other environmental laws, and that financial responsibility is borne by the chemical manufacturers who caused the contamination.
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Water Workforce and Technology
NACWA supports expanding workforce development grants, with a focus on partnerships between utilities, veterans, community colleges, and vocational schools. Additionally, NACWA calls for greater investment in innovative water technologies, such as artificial intelligence, to enhance system efficiency and sustainability.
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Cybersecurity
As utilities face increasing cybersecurity threats, it is essential to ensure that water systems are adequately protected. NACWA advocates for expanded technical and financial assistance to help utilities safeguard their infrastructure and protect national security.
Contact: Danielle Cloutier at 202.533.1824 or Danielle Cloutier.
NACWA Meets with EPA Office of Wastewater Management on Key Clean Water Priorities
NACWA staff met with the U.S. Environmental Protection Agency’s Office of Wastewater Management (OWM) on August 28 to discuss a variety of clean water issues, including some regulatory actions that are expected to be publicly released in the coming weeks and months. NACWA learned the following:
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The Nutrient Baseline Policy Statement, also referred to as the Baseline in Market-Based Approaches, Including Water Quality Trading, under the National Discharge Elimination System Program, has gone through extensive review and volleyed back and forth several times between OWM and the White House Office of Management and Budget (OMB). EPA expects to see something soon; its latest iteration was sent to OMB on August 24, 2023.
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EPA senior leadership is currently reviewing proposed revisions to the water quality standards regulations in 40 CFR that would explicitly allow watershed based approaches, including water quality trading, to be use in achieving compliance with water quality standards. EPA expects to send the proposal to OMB this fall.
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The Maui Draft Guidance on applying the U.S. Supreme Court’s County of Maui v. Hawaii Wildlife Fund decision is with OMB (as of May 17, 2024) and under review. OMB pulled both the draft guidance and final guidance to compare and review.
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EPA senior leadership is continuing its review of the draft Guidance for Future National Pollutant Discharge Elimination System (NPDES) Permits for Combined Sewer Systems. It should be issued by the end of the calendar year.
The EPA Water Affordability Needs Assessment, which the Agency was required to complete as part of the Bipartisan Infrastructure Law to provide an estimate for a potential federal low-income water assistance program, will be published this fall. EPA’s set as its goal publishing the results of the needs assessment by the end of federal fiscal year 2024, on September 30.
EPA has indicated to NACWA that the assessment reflects a significant financial need, and NACWA is optimistic EPA’s report will indeed be comprehensive and be in line with similar assessments from the U.S. Department of Health & Human Services and the 2023 joint water sector report. NACWA is grateful to its Affordability Task Force members for meeting with OWM and to its members for interacting with EPA in its stakeholder sessions over the summer.
Contact: Emily Remmel at 202.533.1839 or Emily Remmel.
Affordability
World Water Week Webinar Focuses on Affordability
NACWA joined the U.S. Department of Health & Human Services (HHS) on August 26 for its virtual celebration of World Water Week. NACWA staff participated in a webinar organized by the HHS Office of Community Services — which formerly administered the Low Income Household Water Assistance Program (LIHWAP) — for a discussion of the rising costs of providing clean and safe water and the affordability challenges that low-income households face. With the temporary LIHWAP funding exhausted, the Office of Community Services has released fact sheets summarizing the program’s impact in each state. Meanwhile, NACWA continues to advocate on Capitol Hill for supplemental funds to keep LIHWAP going and is using the fact sheets for ongoing advocacy. Read more in the Clean Water Current.
Contact: Kristina Surfus at 202.833.4655 or Kristina Surfus.
Funding and Finance
Government Accountability Office Report Calls for Significant Changes to CWSRF State Funding Formula
The U.S. Government Accountability Office (GAO) released a report August 19 that calls for a significant change to how EPA distributes Clean Water State Revolving Fund (CWSRF) dollars to state financing authorities.
GAO’s findings note that the current CWSRF distribution formula, which was developed in 1987 by Congress, is extremely outdated and does not account for current clean water infrastructure investment needs. The report recommends that Congress develop a new formula that is based 60 percent on a state’s total clean water need (as determined by EPA’s Clean Watersheds Needs Survey), 20 percent on a state’s total population, and 20 percent on a state’s economic burden as determined in part by the level of population living at or below 200 percent of the federal poverty level. GAO estimates that under this new formula, 31 states would see the same or higher levels of funding for the CWSRF, while 19 states would see less funding.
Notably, the report does not address the recent impact on the CWSRF of congressional earmarks and the resulting decrease in the overall amount of dollars available to states in their revolving funds, nor does it explain how a change in the CWSRF distribution formula would impact certain states given the decreased funds available due to earmarks. Read more in the Clean Water Current.
Contact: Nathan Gardner-Andrews at 202.833.3692 or Nathan Gardner-Andrews.
EPA Announces $7.5 Billion in Water Infrastructure Finance and Innovation Act Funding
The U.S. Environmental Protection Agency (EPA) announced on September 6 the availability of $7.5 billion in financing through the Water Infrastructure Finance and Innovation Act (WIFIA). This program offers long-term loans aimed at helping communities complete critical water infrastructure projects.
WIFIA provides flexible and cost-effective financing options for the planning, design, and construction of various water infrastructure projects, while also allowing communities to consolidate multiple projects under one loan, simplifying the funding process.
Over its lifespan, WIFIA has provided loans totaling more than $20 billion, supporting $44 billion in projects nationwide. More than 100 borrowers have used WIFIA loans to finance projects benefiting over 64 million Americans. Read more in the Clean Water Current.
Contact: Matt McKenna at 202.533.1825 or Matt McKenna.
PFAS
White House Updates PFAS Strategy in New Report
The White House released a new strategic report in August, the PFAS Federal Research and Development Strategic Plan, which will serve as an implementation plan and compendium to its previous 2023 PFAS Report.
Of importance to NACWA members, the PFAS Strategic Plan highlights a need for a more complete characterization of the presence, identity, and concentration of individual PFAS in the environment, including background levels. The more occurrence and concentration data that can be gathered will help tell the complete story of PFAS contamination in the environment and could help with setting acceptable levels due to the widespread and ubiquitous nature of PFAS contamination.
The report also outlines a need to better characterize PFAS exposure in the “built environment” (e.g., schools, workplaces, indoor/household environments), but also highlights the need to better understand the co-occurrence and use of commercial products containing PFAS and their lifecycles. This effort would be helpful to better communicate relative risk between commercial products that people use every day and municipally generated biosolids. Read more in the Clean Water Current.
Contact: Emily Remmel at 202.533.1839 or Emily Remmel.
New Utility PFAS CERCLA Checklist Available from NACWA
The U.S. Environmental Protection Agency’s designations of PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) became effective July 8, triggering potential reporting requirements and liability concerns for utilities across the country.
NACWA has put together a Utility PFAS CERCLA Checklist for members to use that outlines a number of practical steps utilities should consider in light of the designations. The checklist is not exhaustive and is not intended to provide legal advice to utilities. Instead, it is designed to assist utilities as they develop their own internal plans in response to the designations. The checklist is meant to be used in conjunction with NACWA’s other PFAS resources, including the PFAS CERCLA Primer, Reportable Quantities Calculator, Communications Toolkit for PFAS and Biosolids, and PFAS Considerations Document.
Contact: Amanda Aspatore at 202.833.1450 or Amanda Aspatore.
Regulatory Policy
NACWA Comments on EPA’s Water System Restructuring Assessment Rule
NACWA submitted comments on July 29 to EPA on its proposed Water System Restructuring Assessment Rule (WSRAR), which is designed to provide a comprehensive framework for states and public drinking water systems to evaluate restructuring options.
NACWA’s comments were filed in support of those by its sister drinking water associations including the Association of Metropolitan Water Agencies (AMWA) and the American Water Works Associations (AWWA).
In the comments, NACWA urges EPA to “recognize in its rulemaking that wastewater systems are not the primary focus of this rulemaking and consider any direct or indirect impact that restructuring these dual systems could have on maintaining affordable and reliable sewer and stormwater service. To achieve sustainable compliance options under the proposed rule, the restructuring assessments need to be straightforward, cost-effective, and have a net public benefit, while also considering the impacts on clean water and stormwater utility customers’ rates.” Read more in the Clean Water Current.
Contact: Matt McKenna at 202.533.1825 or Matt McKenna.
Security and Emergency Preparedness
Task Force Continues Work on Utility Cybersecurity Strategy
The Cybersecurity Task Force established by the Water Sector Coordinating Council (WSCC) and the U.S. Environmental Protection Agency (EPA) met August 12-13 and September 17-18 to plan short-term actions that can improve cybersecurity for drinking water and wastewater utilities. The task force began its work earlier this year and will conclude its deliberations by the end of October.
The associations comprising the WSCC plan to work with the state and federal agencies to implement the plans the task force developed. In the meantime, NACWA encourages its members to continue improving their cybersecurity. NACWA strongly encourages its members to take advantage of the free Cyber Vulnerability Scanning service provided by the Cybersecurity and Infrastructure Security Agency (CISA) and to join WaterISAC to access its resources and up-to-date information relevant to the water sector. EPA also provides a list of cybersecurity resources for utilities and offers free cybersecurity risk assessments and technical assistance. Read more in the Clean Water Current.
Contact: Cynthia Finley at 202.533-1836 or Cynthia Finley.
Stormwater
EPA Responds to Coalition Letter on Stormwater Issues
In response to a coalition letter from NACWA, American Rivers, the National Municipal Stormwater Alliance (NMSA), and the Water Environment Federation (WEF) to EPA Administrator Michael Regan outlining principles for better stormwater management, EPA responded and provided examples of its implementation of policies that better incorporate green infrastructure and stormwater management practices.
Bruno Pigott, the Principal Deputy Assisting Administrator of EPA's Office of Water, wrote that the Agency supports states' efforts to address stormwater runoff by financing green infrastructure through the Clean Water State Revolving Fund (CWSRF).
Contact: Matt McKenna at 202.533.1825 or Matt McKenna.
Water Quality
Nutrient Removal Survey Results Available via EPA Website
After several years of effort to collect utility survey responses, EPA has published data from its National Study of Nutrient Removal and Secondary Technologies and making this information available through the Office of Wastewater Management’s interactive dashboard, the Searchable Clearinghouse of Wastewater Technology (SCOWT) website.
A total of 13 percent of all POTWs in the country participated, and the online dashboard includes more than 2,200 responses. One of the most important findings from the survey was that all types of POTWs achieved improved nutrient removal through process modifications or upgrades. The results can be filtered by EPA Region, state, territory, daily flow, design flow, and biological treatment and does not include targeted information about any specific utility in a state. Read more in the Clean Water Current.
Contact: Emily Remmel at 202.533.1839 or Emily Remmel.
Workforce
Interagency Report Highlights Challenges and Opportunities for the Water Sector Workforce
EPA in August released the 2024 Interagency Water Workforce Working Group Report to Congress, providing insights into the growing and evolving workforce challenges facing the water sector.
The report, developed in collaboration with the U.S. Departments of Agriculture, Education, Labor, and Veterans Affairs, was required by Congress as part of the Bipartisan Infrastructure Law. NACWA and other water sector partners played a leading advocacy role with Congress to call for such a report and shine a light on the current workforce challenges and opportunities facing the water sector.
The document highlights significant shortages of skilled workers across the sector and emphasizes the need for new federal programs, partnerships and funding to support workforce development. The report identifies initiatives such as educational programs, apprenticeships and grants as crucial tools to bring more skilled workers into the field. Read more in the Clean Water Current.
Contact: Danielle Cloutier at 202.533.1824 or Danielle Cloutier.