Washington Policy and Regulatory Updates
Our ENS Federal Report provides a summary and the status on select legislative and regulatory actions.
We normally issue a Report when both Chambers are in session
ENS Federal Report
November 19, 2021
President Signs Infrastructure Bill Into Law And House Passes Build Back Better Act
President Biden, flanked by representatives from state and local governments, unions and industry, senior members of the Administration, and a group of bipartisan congressional lawmakers, signed the Infrastructure Investment and Jobs Act in the law. This sets the stage for the release of more than $1.2 trillion over the next five years in hard infrastructure assistance to modernize the nation’s roads, water, wastewater, airports, ports and harbors, and commits funding to address resiliency improvements to help mitigate the growing threats for climate change. Upon the bill’s signing, Biden also issued an Executive Order detailing the roles of key federal agencies to ensure the expeditious implementation of the law’s funding programs.
In what sets the stage for finalization of the second element of the Administration’s overall infrastructure initiative, the House passed the $1.9 trillion soft infrastructure plan, the Build Back Better Act (H.R. 7356) this morning. Unlike the hard infrastructure bill, H.R. 7356 passed on a party-line vote 220-213, with Representative Jared Golden (D-ME) not voting in favor as the only exception. Under the approved bill, the deficit would increase by $367 billion over the next decade. This increase is at odds with the Administration’s analysis and likely means that the Senate could work to reduce or eliminate a number of programs within the bill to bring down the impacts upon the deficit. Regardless of the outcome of any effort, it seems that any final resolution of the bill between the two chambers will extend into December. The House-passed bill creates new programs or expands funding of several social policies and programs, including child day care, paid leave and immigration. Additionally, the substantial funding of $550 billion is included sustainable renewable energy and other climate change programs.
IRS Releases Guidance for State/Local Government on Reporting of Payments from Coronavirus State and Local Fiscal Recovery Funds
Earlier this week, the Internal Revenue Service (IRS) issued guidance to clarify the taxability of payments sent by states to eligible homeowners from the Homeowner Assistance Fund (HAF). It clarified that HAF payments are excluded from gross income. As a result, it provided a safe harbor for computing certain itemized deductions. The guidance states that because these payments were made by a state/local government to individuals and were intended to pay for personal expenses incurred during the COVID-19 pandemic, a qualified disaster. As such, they are considered qualified disaster relief payments under section 139 of the Code and are excluded from gross income. The revenue procedure is effective as of Nov. 8, 2021 and applies to qualified expenses paid after Jan. 21, 2020.
To further clarify and explain the new guidance, the IRS issued a “Frequently asked questions for states and local governments on taxability and reporting of payments from Coronavirus State and Local Fiscal Recovery Funds (SLFR)” later in the week. Of particular importance for local governments, on this issue, was whether a state/local government that uses SLFR Funds to pay utility bills on behalf of individuals, has an obligation to file a 1099-MISC form. The guidance states that since the payment(s) is not considered gross income, no 1099-MISC form or other information return is required to be filed with the IRS or furnished to the beneficiary.
OSHA Suspends Vaccination Mandate Following Circuit Court Decision
This week, the Occupational Safety and Health Administration (OSHA) suspended the Administration's COVID-19 vaccine mandate for large private businesses following the 5th U.S. Circuit Court of Appeals upheld a stay of the mandate last Friday. In its decision, the court has ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." OSHA stated that it "remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation." Following OSHA's announcement, the White House continued to urge businesses to continue implementing vaccination policies. A date for when OSHA will reinstate the rule or unveil an amended rule has yet to be announced.
Earlier this month, OSHA finalized its rule mandating that companies of 100 or more employees, both public and private, must develop, implement, and enforce mandatory COVID-19 vaccination policy. Under such a policy, employers will require employees to either get fully vaccinated or undergo regular COVID-19 testing and wear face coverings while at work in lieu of vaccination by January 4, 2020.
USEPA Advances Draft Scientific PFAS Documents For Review
This week, the U.S. Environmental Protection Agency (USEPA) asked the Scientific Advisory Board (SAB) to review four draft documents regarding the health effects of certain PFAS chemicals, PFOA and PFOS. The draft documents include updated scientific data and new analyses that indicate negative health effects could occur at lower levels of exposure of PFOS and PFOA than previously thought and that PFOA is likely a carcinogen. Administrator Regan stated that the action represents ensure a rigorous review from experienced scientists to strengthen our understanding of this preliminary information as the agency works toward developing revised health advisories for PFOA and PFOS, and soon establishing regulations that protect communities from these contaminants.”
The four documents that will be reviewed are:
EPA's Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for Perfluorooctanoic Acid (PFOA) in Drinking Water
EPA's Proposed Approaches to the Derivation of a Draft Maximum Contaminant Level Goal for Perfluorooctanesulfonic Acid (PFOS) in Drinking Water
EPA's Analysis of Cardiovascular Disease Risk Reduction as a Result of Reduced PFOA and PFOS Exposure in Drinking Water
EPA's Draft Framework for Estimating Noncancer Health Risks Associated with Mixtures of PFAS
Once SAB has reviewed the drafts, the data will be used to inform health advisories and the development of Maximum Contaminant Level Goals and National Primary Drinking Water Regulation for the two chemicals. SAB will hold four public meetings to review these draft documents on December 16, January 4, January 6, and January 7.
USEPA and USACE Propose Pre-2015 WOTUS Rule
The U.S. Environmental Protection Agency (USEPA), along with the U.S. Army Corps of Engineers (USACE), proposed a rule this week to re-establish the pre-2015 definition of the Waters of the U.S. (WOTUS). As USEPA explains in its press release, the re-establishment of the pre-2015 WOTUS rule will help the Agency's reach its overall goal of crafting a durable definition of WOTUS “because it would solidify the rules of the road for a stable implementation of “waters of the United States” while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions." A pre-publication of the proposed rule can be accessed here. Under the pre-2015 rule municipal water treatment systems are exempted from being classified as a waters of the U.S.
Following publication on the Federal Register, the public will have sixty-days to submit comments on the proposed rule.
H.R. 6012, To direct the Secretary of Energy to carry out a demonstration program for projects that improve electric grid resilience with respect to wildfires, and for other purposes. – Rep. Norma Torres (D-CA)
H.R. 5987, PFAS Definition Improvement Act. – Deborah Ross (D-NC)
S. 3245, A bill to establish the Interagency Working Group on Coastal Blue Carbon, and for other purposes. – Sen. Lisa Murkowski (R-AK)
H.R. XXXX, Keep Food Containers Safe from PFAS Act. – Rep. Don Young (R-AK)
Reports and Regulation
USEPA To Host Webinar on Stormwater Financing December 1, 2021 – Entitled, “Affordability and Customer Assistance Programs for Stormwater Services” as the fourth part of EPA’s Water Finance Center’s Stormwater Funding and Financing Approaches Webinar Series. Using federal, state and local examples, presenters will discuss approaches for addressing affordability and customer’s ability to pay for stormwater services. Scheduled for December 1 at 2:00 p.m. (EST).
CRS Report on Recent Funding Increases for FEMA Hazard Mitigation Assistance – New report from CRS on the $3.46 billion in Hazard Mitigation Grant Program funding (HMGP) will be made available to states, territories, and tribes (STTs) with major disaster declarations for the COVID-19 pandemic, and new mitigation funding will be available from FY2022 through the recently passed bipartisan infrastructure package.
Wildfire response to changing daily temperature extremes in California’s Sierra Nevada (Science) - Estimated that increasing daily summer temperature extremes will increase the number of fires by 51 ± 32% and burned area by 59 ± 33%, through the 2040s relative to a 2011–2020 baseline.
Seminal Study Maps Impacts of Wastewater on Coastal Ecosystems (Shared Seas) - The headline result is that wastewater contributes nearly half as much nitrogen to our ocean as does agriculture and livestock.
Congress Next Week
Congress is on recess next week.