DC Beat
J . A L A N R O B ERSO N
Roberson
Five Yards for Delay of Game
W
ith gridlock in Congress, the sequestration budget cuts in January 2013, and the federal government shutdown in October 2013, the US Environmental Protection Agency’s (USEPA’s) regulatory development game has been delayed. Some regulatory actions that were anticipated in early 2013 to be completed by the end of 2013 have slipped to 2014; others have slipped to 2015, or possibly later. Table 1 summarizes what is expected to be published by USEPA in 2014 and what is anticipated to slip until 2015. The first take-away message from Table 1 is that drinking water systems won’t see a new final national drinking water regulation until 2016—or possibly 2017 or 2018. This break provides an opportunity for drinking water systems to come into compliance with some of the relatively new regulations such as the Stage 2 Disinfectant/Disinfection Byproducts Rule (D/DBPR). With compliance with the recently released Revised Total Coliform Rule (RTCR) not required until 2016, the second takeaway message from Table 1 is that water systems have a near-term opportunity to prepare for the RTCR by practicing assessments on their systems and to focus on state RTCR implementation.
NEW CONTAMINANTS As background, the Safe Drinking Water Act (SDWA) Amendments of 1996 mandated the Contaminant Candidate List (CCL) and Regulatory Determination processes as the foundation of USEPA’s efforts to identify new contaminants for the potential development of national drinking water regulations. Both of these regulatory actions are on five-year cycles, and USEPA is required by the SDWA to make determinations on at least five contaminants every five years. The upcoming Preliminary Third Regulatory Determination (Third Reg. Det.; from CCL3) and the draft Fourth Contaminant Candidate List (CCL4) are USEPA’s latest efforts to identify new contaminants for potential regulation. The Third Reg. Det. will be published in 2014, but it isn’t completely clear what will be included in this notice. Preliminary positive determinations (a national regulation must be developed) may be made for nitrosamines, chlorate, and strontium as well as some negative determinations (a national regulation isn’t needed). Recall that nitrosamines have their own set of complicated regulatory issues such as a relatively small contribution from drinking water to the total risk that I have written about previously (Roberson, 2012). However, a recent wrinkle could
2014 © American Water Works Association
JO U R NA L AWWA | M A R C H 2014
19
be the potential inclusion of nitrosamines and chlorate under the Third Six-Year Review of all regulations as part of a holistic regulatory approach for all DBPs. The final Third Reg. Det. will likely be published in 2015. If a preliminary positive determination is made for any of these contaminants, • a proposed rule needs to be developed within 24 months after the final determination and • a final rule would be published within 36 months. Therefore, any final regulation resulting from the preliminary Third Reg. Det. would be about five years down the road, with compliance for water systems another three years beyond the final regulation. The draft CCL4 should be the second regulatory action that will be published in 2014. In May 2012, USEPA requested nominations of contaminants to be considered for inclusion on CCL4 (77 FR 27057). This notice resulted in 59 unique contaminants (54 chemicals and five microbes) that were nominated by 10 organizations and individuals. In these 59 nominations, eight contaminants were nominated more than once. USEPA is also reevaluating the CCL3 contaminants to determine which might be appropriate to carry over to the draft CCL4, so it’s not completely clear what will be on this draft list. The final CCL4 will likely be published in 2015.
FLUORIDE In January 2011, the US Department of Health and Human Services (HHS) released a proposed Recommendation for Fluoride Concentration in Drinking Water for Prevention of Dental Caries (HHS, 2011). HHS recommended that the level of fluoride in drinking water be set at the lowest end (0.7 mg/L) of the current optimal range (0.7–1.0 mg/L) to prevent tooth decay. HHS’s final recommendation is anticipated to be published in 2014. In addition, USEPA initiated a review of the maximum amount of fluoride allowed in drinking water, but this review is proceeding at a much slower pace because of interoffice coordination regarding potential health risks posed by fluoride.
CYBERSECURITY In February 2013, President Obama issued Executive Order (EO) 13636, Improving Critical Infrastructure Cybersecurity, which directed the National Institute of
TABLE 1
Standards and Technology (NIST) to work with stakeholders to develop a voluntary framework for reducing cyber risks. In October 2013, NIST released the Preliminary Cybersecurity Framework to help critical infrastructure owners and operators reduce cybersecurity risks in industries such as power generation, transportation, telecommunications, and water and wastewater systems (NIST, 2013). As EO 13636 directs, NIST planned, as of this writing, to release the final framework in February 2014. EO 13636 also requires USEPA to determine “whether . . . the Agency has clear authority to establish requirements based upon the Cybersecurity Framework to sufficiently address current and projected cyber risks to critical infrastructure, the existing authorities identified, and any additional authority required.” Following recommendations in the 2008 Roadmap to Secure Industrial Control Systems in the Water Sector, AWWA has developed a web-based cybersecurity resource designed to complement the NIST framework and provide systems with a use-case approach for evaluating cybersecurity practices and controls. As of this writing, this resource was scheduled to be released in February 2014.
INHERENTLY SAFER TECHNOLOGY (IST) In August, 2013, in response to the fertilizer plant explosions in West, Texas, President Obama issued another order, EO 13650—Improving Chemical Facility Safety and Handling. The focus of this order is • improved local coordination; • enhanced federal coordination and information collection and sharing; • policy, regulation, and standards modernization; and • identification of best practices. Where this potentially gets a little sticky is what, exactly, regulatory agencies (such as USEPA) might do as a result of EO 13650 (as well as EO 13636). EOs are an administrative order—i.e, an order from the president for the federal agencies to conduct a review or some other action. But they are not anywhere close to statutes that have gone through the legislative process such as the SDWA or Clean Water Act. The inherent policy debate is how much the regulatory agencies can develop “requirements” versus “recommendations” based on these EOs. The drinking water com-
Upcoming regulatory actions Expected in 2014
Delayed Until 2015 (or later)
Preliminary Third Regulatory Determination
Proposed Lead and Copper Rule Long-Term Revisions
Draft Fourth Contaminant Candidate List
Proposed Perchlorate Rule
Final recommended fluoride level for drinking water
Proposed Carcinogenic Volatile Organic Compound Rule
Cybersecurity framework and inherently safer technology evaluations
20
MARCH 2 0 1 4 | J OU R N A L AWWA
2014 © American Water Works Association
munity will have to wait and see if these reviews really result in anything significant.
OTHER DELAYS Some significant drinking water rules have been delayed until 2015 (or later): Proposed Lead and Copper Rule long-term revisions (LCR-LTR). In 2014, USEPA plans to solicit stakeholder input on several complex issues surrounding this rulemaking, such as • partial lead service line replacement, • revision of compliance for lead and copper sampling locations to focus more heavily on lead service lines, • potential separate sampling locations for copper, and • the definition of appropriate optimized corrosion control. A workgroup is being established under the National Drinking Water Advisory Council (NDWAC) to solicit the input, which should take most of 2014. The full NDWAC will review (and, it is hoped, approve) the workgroup’s report and forward it to USEPA, which should incorporate the input into the proposed LCR-LTR that should be published in 2015. Proposed perchlorate rule. In May 2013, a panel of the Science Advisory Board completed Advice on Approaches to Derive a Maximum Contaminant Level Goal for Perchlorate (SAB, 2013). To address sensitive life stages that are potentially at greater risk of adverse health effects, USEPA is in the process of evaluating this advice and is conducting additional refinements to the physiologically based pharmacokinetic models for perchlorate. After the analyses are completed, USEPA will incorporate the results into its proposed perchlorate rule that should be published in 2015. Proposed carcinogenic Volatile Organic Compound (cVOC) Rule. In 2011, USEPA identified cVOCs as the first group of contaminants to be regulated as a group (as opposed to one at a time) under the agency’s 2010 Drinking Water Strategy. The intent of regulating by group is to use cooccurrence, common health effects, analytical methods, and/or treatment as the basis for developing a contaminant group for a regulation. It’s a good concept in theory. However, in practice, developing a group regulation has been much more challenging than anticipated (Roberson, 2013). The ongoing federal budget issues have likely contributed to the cVOC Rule being delayed into 2015 (and potentially even later). Other actions. Other regulations—the Third Six-Year Review of existing regulations, the Fourth Unregulated Contaminant Monitoring Rule, and possible regulation of hexavalent chromium (CrVI)—stretch the regulatory schedule into 2016–17.
ment process, these regulatory delays do have consequences for water system planning. It can be challenging for planning and engineering staff to determine when they need to have plans for treatment modifications completed and the construction finished when the regulatory deadlines move around and/or are delayed. Even with all of the delays, new and/or revised regulations will continue to be released by USEPA because the agency must still meet SDWA regulatory mandates to identify and evaluate new contaminants for potential regulation as well as review existing regulations. —J. Alan Roberson is director of federal relations for AWWA in Washington, D.C. He can be reached at
[email protected].
REFERENCES HHS (US Department of Health and Human Services), 2011. HHS and EPA Announce New Scientific Assessments and Actions on Fluoride. www.hhs.gov/news/press/2011pres/01/20110107a.html (accessed Dec. 15, 2013). NIST (National Institute of Standards and Technology), 2013. Improving Critical Infrastructure Cybersecurity Executive Order 13636 Preliminary Cybersecurity Framework. www.nist.gov/itl/upload/ preliminary-cybersecurity-framework.pdf (accessed Dec. 15, 2013). Roberson, J.A., 2013. Is Regulating by Groups More Effective? Or Not? Journal AWWA, 105:7:12. http://dx.doi.org/10.5942/ jawwa.2013.105.0098. Roberson, J.A., 2012. Regulating Nitrosamines Will Be Controversial. Journal AWWA, 104:9:10. http://dx.doi.org/10.5942/ jawwa.2012.104.0121. SAB (Science Advisory Board), 2013. Advice on Approaches to Derive a Maximum Contaminant Level Goal for Perchlorate. http://yosemite. epa.gov/sab/sabproduct.nsf/d21b76bff879fa0a8525735a00766807/86 E44EE7F27EEC1A85257B7B0060F364/$File/EPA-SAB-13-004unsigned2.pdf (accessed Dec. 15, 2013).
http://dx.doi.org/10.5942/jawwa.2014.106.0046
Journal AWWA welcomes
DELAYS VERSUS ACTION Although nobody is going to literally throw a penalty flag at USEPA for these delays in the regulatory develop-
comments and feedback at
[email protected].
2014 © American Water Works Association
JO U R NA L AWWA | M A R C H 2014
21
