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 20, 2020
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
July 23, 2021
House Passes PFAS Legislation Broadening Superfund Liability
On a bipartisan vote of 241-183, with twenty-three Republicans joining all House Democrats, the PFAS Action Act (H.R. 2467) has been sent to the Senate. The vote came after a broad array of water sector interests urged defeat of the legislation, because of provisions that would make PFAS chemicals hazardous substances and subject any entity that handle PFAS contaminated waters and wastewaters a potentially responsible party liable for the cleanup and/or damages related to the presence of PFAS. As approved, the bill appears to revamp the Superfund policy of “polluter pays” and sets up a situation where passive receivers of the chemicals could become entangled in Superfund’s strict, joint and several liability regime. The bill also provides for the truncated review and promulgation of a national drinking water standard for these chemicals.
In the congressional debate over the bill, calls for a more reasoned approach to protect public water agencies, dedicated to protecting public health, from frivolous Superfund litigation because the ubiquitous chemical may be in the waters, wastewaters and biosolids were rejected on the premise that the concern was unwarranted. The bill would also fund grants to wastewater agencies to help implement source control programs, fund treatment costs incurred by water agencies, require USEPA to issue industrial discharge limits and require industries to notify wastewater treatment operators of any discharges of the chemicals. Upon passage, key Senators Tom Carper (D-DE) and Shelley Moore Capito (R-WV), leaders of the Committee on Environment and Public Works stated that PFAS and public health remain an issue of concern, but actual legislative approaches have yet to be developed.
As approved by the House, the bill would impact water and wastewater agencies by:
Mandate designation under Superfund of PFAS as a hazardous substance within one year of enactment and within 5 years whether to designate all other PFAS PFOA substances.
Require testing for PFAS relying on Toxic Substances Control Act and other analytical methods
Require manufacturing and processing notices by EPA that PFAS PFOA presents an unreasonable risk of injury to health or environment and prevent the manufacturing or processing of PFAS PFOA beginning on the date of enactment for five years
Require within two years of enactment for EPA to propose and issue a national primary drinking water standard targeting at a minimum PFOS and PFOA (EPA may include other substance or class in the standard
A standard must be finalized within one year of proposed standard (6 month extension allowed)
Standard must be protective of most vulnerable subpopulation
Require monitoring by water systems and include requirements for systems that do not detect (or substance below standard)
Within 18 months EPA may list additional substances or subclasses to the drinking water standards
Enforcement of any standard cannot occur earlier than 5 years after the date of standard promulgation
Grants program established to support water systems treat PFAS
Prohibits incineration of PFAS
Require labeling “PFAS free” of pots pans, cosmetics etc.
Require notification of PFAS discharges into wastewater treatment systems
Require USEPA to develop risk communication strategy to inform public about PFAS threats to land, water (including drinking water), and products
Require EPA to issue Clean Water Act effluent standards, pretreatment standards and water quality criteria for PFAS
Provide grants ($200 million per year for 5 years) to wastewater agencies to implement standards
When the House voted, it adopted a limited number of amendments to the bill. These are selectively summarized below.
Key Amendments Adopted
Grants assistance program to support PFAS treatment modified to be consistent with grants program contained in INVEST in America Act (H.R. 3684) No substantive impact
EPA to create a website to provide support to well owners test water and understand analysis. No substantive impact.
Require PFAS risk communication strategy to address PFAS agricultural impact. No substantive impact.
Create $100 million grants program to test and remediate PFAS contaminants found in schools. No substantive impact.
Revise PFAS treatment grants program to allow applicants that have undertaken remediation prior to enactment to certify that treatment was inadequate to remove all detectable amounts. Substantive impact as it allows for grants eligibility.
Require EPA to obtain analytical reference standards for PFAS to support protocols development and enforcement activities. Substantive impact.
Increase annual funding for water system grants assistance to $500 million. Substantive impact providing more funding.
Adds to items to listing of PFAS free labeling of products. No substantive impact.
Amends treatment technology certification of effectiveness list to be published 150 days after enactment and revised every two years. Priority for assistance to go to: 1) disadvantaged community, 10% cost-share, demonstrate ability to finance eligible technology, or located in an area that PFAS has impacted a sole source aquifer or principal drinking water supply.
Provide that within 3 years effluent limitations must be issued for each class and subclass of PFAS substance. Establishes priority industries for regulation. Measurable amounts of PFAS is defined to be standards using Clean Water Act authorities (section 304(h) ).
Provides $1 billion over five years to support implementation of pretreatment programs by wastewater agencies. Grants limited to $100,000 per agency. Grants cannot be used to pay the costs associated with tax-exempt bonds.
Senate Says Not So Fast; Cloture Vote on Infrastructure Package Fails
Senate Majority Leader Chuck Schumer’s (D-NY) effort to fast forward Senate debate on a $1 trillion bipartisan infrastructure initiative went off the rails as Senators voted along party lines 51-49 not to proceed to formal floor debate. Schumer represented the 51st vote in order to allow him on a procedural basis to bring up another cloture vote. The failure to proceed to floor debate was not a surprise as Republicans expressed opposition to the vote before the actual legislation was drafted for review. Currently, the bipartisan group of twenty Senators is working to define the programs and at what levels the programs would be funded under a Senate infrastructure package. As of this writing, the group is seeking to finalize a legislative proposal by mid-week next week, allowing Senators to review the effort before the August recess begins on or around August 9.
Meanwhile, progress on a fiscal year 2022 budget resolution that could lead to a reconciliation measure continues. The Senate Budget Committee approved a $3.5 trillion spending blueprint for the coming budget year. If the bipartisan agreement fails to materialize, the budget resolution and the succeeding reconciliation package could become the process to advance passage of an infrastructure package addressing both traditional and human infrastructure funding needs.
Local Government Stakeholders Seek to Expand Use of COVID Relief Funds
In early May, the U.S. Department of Treasury issued an Interim Final Rule to implement the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act and requested public comment on the use of these funds. The National Association of Counties (NACO), the Association of California Water Agencies (ACWA), and the National League of Cities (NLC) submitted comments on the use of $65.1 billion targeted for “necessary investments in water, sewer, or broadband infrastructure.” The comment period on the Interim Rule closed on July 16. Below are select comments by these organizations specific to the use of funds for water projects:
The Final Rule should expressly state that the local government is responsible for determining project eligibility for drinking water, wastewater and stormwater projects under the eligible project categories of the Clean Water and Drinking Water State Revolving Fund programs.
The Final Rule should allow Fiscal Recovery Funds to be used for projects eligible under the Secure Water Act.
In addition to DWSRF and CWSRF eligible projects, Treasury should expand eligible projects for Fiscal Recovery Funds to include investments in water infrastructure for firefighting and fire suppression.
Expand eligible infrastructure under the Interim Final Rule to include dam and reservoir projects.
Allow revenue loss funds to be used for debt service.
Expand eligibility to include projects under the FEMA Floodplain Management Program and for dam and reservoir projects.
Cybersecurity Legislation Positioned to Move in Senate
According to congressional staff, the Senate Committee on Homeland Security and Governmental Affairs may consider H.R. 3138, the State and Local Cybersecurity Improvement Act prior to the August recess. H.R. 3138 was passed out of the House on July 20. In response to the growing threat and frequency of “Ransomware” cybersecurity attacks, H.R. 3138 would provide Homeland Security Department grants to state and local governments to address cyberthreats.
Introduced by Rep. Yvette Clarke (D-NY), the bipartisan bill would authorize $500 million annually from fiscal 2022 through 2026 for the grant program to facilitate to state and local efforts to enhance the resilience of information systems against cyberthreats, conduct continuous threat assessments, provide safe online services, and mitigate threats to critical infrastructure. Funds would be allocated to the states by population and then made available to local governments.
White House Releases Interim Guidance For Environmental Justice Initiative
The White House released interim guidance for its Justice40 Initiative. The guidance outlines recommendations and required actions for agencies that manage funding programs covered by the Initiative. Such actions include identifying the benefits of covered programs, determining how covered programs distribute benefits, and calculating and reporting on reaching the Initiative's funding goals. The Justice40 Initiative is whole-of-government effort to have federal agencies work with states and local communities to deliver at least 40 percent of the overall benefits from Federal investments in climate and clean energy to disadvantaged communities.
The guidance identifies the following water infrastructure funding programs as covered under the Initiative: the Clean Water State Revolving Fund, the Drinking Water State Revolving Fund, and Reducing Lead in Drinking Water.
Wipes Labeling Bill Introduced In House To Address Clean Water Infrastructure Concerns
This week Representative Alan Lowenthal (D-CA) introduced legislation this week to address a unique problem impacting clean water infrastructure, the flushing of non-flushable wet wipes. Lowenthal was joined by original cosponsor Representative McClain (R-MI). The wipes, such as diaper wipes and makeup remover wipes, are not designed to be disposed of through the sewer system because of their synthetic materials. As a result, when these wipes are flushed, they travel through the sewer system accumulating with other fats, oils, and materials in the wastewater stream creating large blockages that damage pipes and pumps.
To resolve this problem, the bipartisan Wastewater Infrastructure Pollution Prevention and Environmental Safety (WIPPES) Act would direct the Federal Trade Commission (FTC), in coordination with the U.S. Environmental Protection Agency (USEPA), to establish regulatory requirements for manufacturers of non-flushable wet wipes to print a “Do Not Flush” label notice on product packaging. The establishment of a “Do Not Flush” label is intended to educate consumers on how to dispose of these products and to not flush the wipes down the toilet. Below is a summary of the WIPPES Act's key provisions:
Not later than 2 years after date of enactment, the Federal Trade Commission (FTC), in consultation with USEPA, will issue regulations to require wipes manufacturers to print clear and visible "Do Not Flush" label notices on non-flushable wet wipes product packaging.
Prohibition on the representation or marketing of flushable attributes, performance, or efficacy benefits for non-flushable wipes products.
FTC may bring penalty fines of not more than $2,500 for each day a manufacturer fails to comply with labeling requirements. Total fine amount may not exceed $100,000 for a single violation.
FTC will develop guidance for manufacturers to conduct education and outreach campaigns on new labeling requirements and provide consumers with information on how to dispose of wipes.
Senate Committee Explores Cybersecurity Needs For Water Sector
This week, the Senate Committee on Environment and Public Works held a hearing to explore the state of cybersecurity for the nation’s physical infrastructure, identify potential vulnerabilities, and what is needed to address the vulnerabilities. The hearing paid special attention to the vulnerabilities and needs of water infrastructure systems, especially the rural water systems. Chairman Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) both stated the committee’s important role in developing solutions that safeguard infrastructure systems that include water systems.
Among the witnesses before the committee, Representative Mike Gallagher (R-WI) and Senator Angus King (I-ME) testified because of their legislative history of addressing cybersecurity policy issues. Both King and Gallagher emphasized the importance of securing the nation’s water infrastructure systems. Gallagher cited that the nation’s “water and wastewater infrastructure sector lags behind many of its peers, posing a risk to our public health and safety. In the report we submitted to Congress in March of 2020, the Commission concluded that water utilities remain largely ill-prepared to defend their networks from cyber-enabled disruption.”
Throughout the hearing it was clear that there is an extreme lack of cybersecurity preparedness within the nation’s water and wastewater sector, as all the witnesses expressed that there is little to no cybersecurity training requirements necessary to obtain operating licenses for water facilities, there is no standard guidance for individual utilities to follow when faced with a cybersecurity threat, and that there is a gap in federal funding and resource tools for the sector to be able to address and improve the cybersecurity shortcomings. There was also an emphasis that the problem is especially troublesome for smaller and rural systems and suggestions from witnesses suggested it is necessary for the federal government to provide these systems with further funding and information management assistance.
Carper highlighted the eight recommendations Evan Pratt, representing the American Public Works Association, outlined during his testimony for how the federal government can support improving water infrastructure cybersecurity. The recommendations included:
The federal government must share threat information and provide technical support to state and local governments to enhance cybersecurity. One way may be by establishing Voluntary National Cybersecurity Guidelines and include public works in crafting these recommendations.
Standardize and utilize important tools to protect these critical assets, including Supervisory Control and Data Acquisition (SCADA) systems, possibly consistent with tools for other ICS system protections.
Comprehensive cybersecurity training for public works professionals to prevent and mitigate cyber intrusions.
Continue and fully fund the Federal Emergency Management Agency’s Emergency Management Performance Grant Program (EMPG).•Encourage effective asset management strategies.
Provide robust federal funding through programs including the State Revolving Funds, Water Infrastructure Finance and Innovation Act (WIFIA) loans, and Rural Utilities Service loans & grants, making cybersecurity specifically eligible for funding.
Financing mechanisms for water infrastructure investment at the local level should be preserved and enhanced, to allow local governments to better invest in cybersecurity. Lifting the cap on Private Activity Bonds for water infrastructure and restoring advance refunding of tax-exempt municipal bonds can assist this goal.
Congress should continue to ensure state and local control regarding public works projects as it is the local level officials who are experts on their communities and the community needs.
Also testifying with Pratt before the committee were: Sophia Oberton, Special Projects Coordinator, Delmar Public Works Department, John Sullivan, Chief Engineer, Boston Water & Sewer Commission, and Shailen Bhatt, President & CEO, ITS America.
WOW Oversight Hearing on Water Resource Programs
On July 22, the House Committee on Natural Resources, Subcommittee on Water, Oceans, and Wildlife held an oversight hearing on the President’s Fiscal Year 2022 Budget Proposal for the U.S. Bureau of Reclamation, U.S. Geological Survey, U.S. Fish and Wildlife Service, and National Oceanic and Atmospheric Administration. Chairman Jared Huffman (D-CA) prioritized the need to address the ongoing drought in the Western U.S. and inquired how the agencies plan to use their legal authorities and funding to address climate changes and its impacts. Ranking Member Bruce Westerman (R-AR) focused his questions on delays to managing federal lands to litigation that have resulted in degradation of these lands and increased wildfire risk.
Westerman asked David Palumbo, Deputy Commissioner of Operations for the U.S. Bureau of Reclamation to provide an update on when the Bureau will provide Congress with a list of Water Infrastructure Improvements for the Nation (WIIN Act) funding priorities. Palumbo responded that the Bureau is finalizing the list and would be submitting it to Congress in the next few weeks. In his testimony, Palumbo highlighted the capability of WaterSMART grants and Title XVI projects to save more than one million acre-feet of water each year (once completed). In addition, he stressed the need for Bureau operations to provide real-time resiliency and long-term adaptation requirements to address drought and a changing climate.
Rep. Grace Napolitano raised the importance of federal stream gages to accurately measure water conditions and provide data for improved management of water resources. Don Cline, Associate Director of Water Resources for the U.S. Geological Survey estimated that it would take over $238 million to fully fund all (4,700) federal priority stream gages. Cline noted that currently only about 1/3 of the gages are federally funded and the rest rely on partnered funds.
Additional testimony was provided by: Stephen Guertin, Deputy Director for Program Management and Policy for the U.S. Fish and Wildlife Service; and, Richard Spinrad, Administrator for the National Oceanic and Atmospheric Administration.
H.R. 4569, To require that only two alternatives be considered with respect to certain proposed collaborative forest management activities, and for other purposes. – Rep. Tom McClintock (R-CA)
H.R. 4574, To expedite certain activities related to salvage operations and reforestation activities on National Forest System lands or public lands in response to catastrophic events, and for other purposes.- Rep. Jay Obernolte (R-CA)
H.R. 4579, To establish an arbitration process pilot program as an alternative dispute resolution process for certain objections or protests to qualified forest management activities, and for oter purposes. – Rep. Matthew Rosendale (R-MT)
H.R. 4584, To establish a categorical exclusion for certain forest management activities relating to early successional forests and a categorical exclusion for certain activities relating to outdoor recreation, and for other purposes. – Rep. Pete Stauber (R-MN)
H.R. 4518, To establish a categorical exclusion for certain forest management activities related to wildfire prevention and drought mitigation, and for other purposes.- Rep. Yvette Herrell (R-NM)
H.R. 4541, To amend the Healthy Forests Restoration Act of 2003 to provide clarification with respect to certain categorical exclusion authority relating to insect and disease infestation and wildfire resilience projects, and for other purposes. – Rep. Thomas Tiffany (R-WI)
H.R. 4516, To establish a categorical exclusion to expedite certain critical response actions, and for other purposes. – Rep. Mike Garcia (R-CA)
H.R. 4664, To amend the Healthy Forests Restoration Act of 2003 to establish emergency fireshed management areas, and for other purposes. – Rep. Blake Moore (R-UT)
S. 2454, A bill to amend the Federal Water Pollution Control Act to reauthorize the pilot program for alternative water source projects, and for other purposes. – Sen. Alex Padilla
S. 2406, A bill to amend the Safe Drinking Water Act to require the Administrator of the Environmental Protection Agency to set maximum contaminant levels for certain chemicals, and for other purposes. – Sen. Kristen Gillibrand (D-NY)
S. 2421, A bill to authorize the Administrator of the Environmental Protection Agency to conduct research on wildfire smoke, and for other purposes. – Sen. Jeff Merkley (D-OR)
H.R. 4597, To amend the Federal Water Pollution Control Act to make certain projects and activities eligible for financial assistance under a State water pollution control revolving fund, and for other purposes. – Rep. John Garamendi (D-CA)
S. 2404, A bill to improve Federal activities relating to wildfires, and for other purposes. – Sen. Catherine Cortez Masto (D-NM)
S. 2389, A bill to require the Administrator of the Environmental Protection Agency to provide grants to reduce the quantity of food waste, and for other purposes. – Sen. Cory Booker (D-NJ)
H.R. XXXX, the Resilient Federal Forests Act- Rep. Bruce Westerman (R-AR)
Reports and Regulation
(Grant) - Good Jobs Challenge Department of Commerce - The ARPA Good Jobs Challenge NOFO is designed to help get Americans back to work by investing in (1) developing and strengthening regional workforce training systems that support sectoral partnerships, (2) designing sectoral partnerships, and (3) implementing sectoral partnerships that will lead to high-quality jobs."
Webinar USEPA Sustainable Financial Management Planning for Water Utilities – On August 5, 2021 USEPA will hold a webinar to addressing mounting financial challenges by projecting revenue expectations, capital improvement needs, and expenses years into the future.
Report to Congress on Integrated Plans to Comply with the Water Infrastructure Improvement Act of 2019. -U.S. Environmental Protection Agency - Details how many municipalities have developed plans and which ones are implemented through permits, orders, or judicial consent decrees since EPA’s Integrated Planning Framework (2012).
Congress Next Week
Tuesday July 27, 2021
Senate Committee on Energy and Natural Resources – Hearing to Examine the President’s FY2022 Budget Request for the U.S. Department of the Interior
Wednesday July 28, 2021
Senate Committee on Environment and Public Works – Hearing on Examining the Benefits of Investing in USACE Water Infrastructure Projects
Thursday July 29, 2021
Senate Committee on Environment and Public Works – Hearing on the Nominations of Stephen A. Owens, Jennifer Beth Sass, and Sylvia E. Johnson to be members of the U.S. Chemical Safety and Hazard Investigations Board
House Committee on Transportation and Infrastructure – Hearing on Assessing the Federal Government’s COVID-19 Relief and Response Efforts and Its Impact