Looking Ahead at 2015 From Inside the Beltway - Wiley Online Library

DC Beat

J . A L A N R O B ERSO N

Roberson

Looking Ahead at 2015 From Inside the Beltway

A

t the start of a new year, it’s always good to look ahead and think about where Congress and the US Environmental Protection Agency (USEPA) are going and how their respective actions might affect water and wastewater systems in the coming year and beyond. Keep in mind that I am writing this column around the holidays in 2014 and it will published in the April 2015 issue, so some actions may have already happened in the time between my writing and publication. However, given how things typically move Inside the Beltway, I don’t think we will see anything earthshaking in that window of time.

CONGRESS As everyone should know, the midterm elections in 2014 were significant in that Republicans became the majority party in the Senate and consequently now control both bodies of Congress. So what does that mean for the possibilities of significant legislation passing in the 2015–2016 session of Congress (i.e., the 114th Congress)? If I knew the answer to that question, I would not be 12

APRIL 2 0 1 5 | J OUR N A L AW WA

writing this column but rather sitting under a palm tree on a nice island somewhere living off the winnings from my successful stock picks. It’s a question that nobody really knows the answer to because there are lots of moving parts. As the familiar quotation goes, “Laws are like sausages; it is better not to see them being made.” The recently passed appropriations bill for fiscal year 2015— known as the Cromnibus (a combination of continuing resolution and an omnibus appropriations bill)—plus some other bills that were passed at the end of the 113th Congress offer some hope that the new Congress might be different from the former group and may pass significant legislation in 2015 and 2016. Crucial issues such as the national debt, the national tax code, education, immigration, and others still need to be addressed. Congressional Republicans will want to prove that they are capable of governing as we head into the 2016 elections, and President Obama is no doubt thinking about his legacy while his last term winds down. Those self-interests should compel the president and Congress to try to work toward some legislative accomplishments.

2015 © American Water Works Association

The past session of Congress was not productive—as of Dec. 18, 2014, President Obama had signed 296 bills into law. This is the second lowest for any two-year Congress in records dating back to the 1940s. And the partisan bickering hasn’t really slowed down that much since the midterm elections. However, a few bills did pass and were signed by the President at the last minute, and that offers a sliver of hope for some substantive legislation advancing in the 114th Congress. For example, S 1363, the Cybersecurity Act of 2014, will institute voluntary standards through the National Institute of Standards and Technology— note that these are still voluntary standards, but one never knows how and when voluntary standards could morph into regulatory requirements, especially considering the recent hack of Sony Pictures. Also signed was HR 4007, the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014, which reauthorizes the Chemical Facilities Anti-Terrorism Standards program through 2017. Of note, water and wastewater systems still remain outside this regulatory program, since water systems serving more than 3,300 people were subject to the regulatory requirements of the Bioterrorism Act of 2002 (PL 107-188), which included similar requirements.

14


Campaigning for the 2016 presidential election is going to start in earnest in early 2015, either distracting members of Congress running for president or encouraging them to use Congress for attention-grabbing actions to advance their campaigns. But again, trying to forecast how election politics are going to play out is pointless, although plenty of pundits are already doing exactly that. In looking at some of the policy issues that were inserted in the Cromnibus, such as changes to Dodd– Frank (my son Michael, the economist, pointed this one out to me), indicate some of the philosophical policy divisions between the two parties that will continue to play out in future legislation. And don’t forget that President Obama can still veto any legislation he finds objectionable, as the majorities in Congress are not large enough to likely override any vetoes. AWWA has a couple of legislative priorities in the 114th Congress. The first is to remove the ban on the use of tax-exempt financing for infrastructure projects receiving assistance from the Water Infrastructure Finance and Innovation Act (WIFIA). The second is to obtain funding appropriated for WIFIA to get actual projects started. USEPA received the fully authorized amount in the Cromnibus for program administration, and that’s a sign of strong Congressional support for


the new program, but additional funding is needed in fiscal year 2016 to start getting actual loans out the door and get actual projects started. Congress could hold some hearings and possibly start moving legislation on cybersecurity or cyanotoxins, but I don’t think any of those bills will actually get through both sides of Congress to become law (of course, I could be wrong). The 113th Congress did manage to pass some cybersecurity legislation as previously discussed, and USEPA may be far enough along in dealing with cyanotoxins (as discussed in the section to follow) to satisfy Congress for now. However, a large-scale cyberattack on the United States (beyond the likes of the attacks on Sony Pictures and Target) could spur additional lawmaking. One development to watch is the creation of a new House oversight subcommittee that will examine policies at USEPA, as well as the Departments of Interior, Energy, and Agriculture. The chair, Rep. Cynthia Lummis (R-Wyo.), will likely hold oversight hearings on some of USEPA’s planned regulations.

USEPA In shifting focus to USEPA (and one other federal agency), I think we will see the following seven regulatory/ nonregulatory actions in 2015:

16


• Draft Contaminant Candidate List 4 (CCL4) • Proposed Unregulated Contaminant Monitoring Rule 4 (UCMR 4) • Final recommended fluoride level for drinking water (from the Department of Health and Human Services [HHS]) • The start of the second round of monitoring under the Long Term 2 Enhanced Surface Water Treatment Rule (LT2ESWTR) • Something on drinking water storage tanks • Guidance on Legionella treatment • Health advisories for cyanotoxins While some might think USEPA is not really doing anything since we have only seen one new final regulation in the last few years (the Revised Total Coliform Rule in 2013) and no new final regulations are on the horizon, this list shows that USEPA has a relatively full regulatory agenda. Several steps are necessary to bring new or revised national drinking water regulations to the finish line. And future timelines in the regulatory development process allow AWWA to continue to provide sound scientific and technical data to USEPA to ensure that regulations are based on the best available, peer-reviewed science as required by the Safe Drinking Water Act.


CCL4. The Draft CCL4 is another iteration in USEPA’s five-year cycles of identifying potential contaminants for regulation. USEPA asked for CCL4 nominations in May 2012 (77 FR 27057). Given the current constrained federal budget environment, it’s likely that CCL4 will consist of CCL3 minus the five recent preliminary regulatory determinations (79 FR 62715) plus a chemical or two from the 2012 nominations. UCMR 4. The Proposed UCMR 4 is another iteration of the rulemakings to fill the occurrence data gaps in CCLs. USEPA held a stakeholder meeting in June 2014 to provide stakeholders with some details on contaminants being considered for UCMR 4 (79 FR 30787). Some cyanotoxins are likely to be included in UCMR 4, and the monitoring for these compounds will likely be in the summer time frame as opposed to the typical four quarters of monitoring. The final UCMR 4 is scheduled to be published in 2016, and UCMR 4 monitoring is anticipated to start in January 2018. Fluoride. HHS should release the final recommended fluoride level for drinking water in 2015. The proposal for 0.7 mg/L as the optimal fluoride level was released in January 2011 (76 FR 2383), and a final rule has been substantially delayed for reasons unknown but likely because of ongoing controversy surrounding fluoride. USEPA is in the process of reviewing both the primary and secondary standards for fluoride, but the timeline for completing that review is not all together clear. LT2ESWTR. 2015 also marks the start the second round of monitoring under LT2ESWTR. The second round of monitoring has staggered start times, which is similar to the first round of monitoring, and surface water systems (and systems with groundwater under the direct influence of surface water) serving > 100,000 people have to start monitoring by Apr. 1, 2015. Two issues to note with the second round are the lack of a central USEPA database for the monitoring as the state primacy agencies are now collecting the monitoring data and USEPA’s recommendation (but not requirement) that Method 1623.1 be used for this monitoring. Storage tanks. It’s not completely clear what USEPA might do on drinking water storage tanks, but something might come out in 2015. USEPA has been under a little pressure to “do something” on storage tanks since the 2008 Salmonella outbreak in Alamosa, Colo. USEPA held a public meeting in October 2014 to hear different stakeholders’ perspectives on tank inspection and cleaning (79 FR 52647). USEPA is currently evaluating data and information to determine whether a regulation, guidance, or something else is needed on storage tanks. Legionella. USEPA is planning to issue guidance on treatment options for Legionella this summer. Over the past few years, some facilities have installed secondary disinfection systems for water quality issues within their premise plumbing. These facilities now become public water systems with the installation of these systems and face all of the monitoring and operator certification requirements.

AWWA is developing a communications guide for water systems on how to talk with building owners and operators that is scheduled for release in 2015. Cyanotoxins. Cyanotoxins jumped a little higher on the regulatory priority list, given the water quality problems in Toledo, Ohio, in August 2014. Cyanotoxins were listed on CCL3 and will almost certainly be listed on both CCL4 and UCMR 4. AWWA, in conjunction with the Water Research Foundation, is developing a communications guide for water system managers on cyanotoxins that is scheduled for release in spring 2015. Regulatory delays. Proposals for perchlorate, long-term revisions to the Lead and Copper Rule (LCR), and carcinogenic volatile organic compounds have all been delayed a year or two and are not anticipated to be proposed until very late in 2015 or, more likely, in 2016. These delays can be attributed to multiple priorities competing for limited funds. Comparing fiscal year 2015 with fiscal year 2010, for example, the USEPA budget has been reduced by $2.2 billion (22%), and the agency’s staffing levels are anticipated to be reduced to the lowest levels since 1989. These continued reductions could mean even more regulatory delays in the future. A Working Group under the National Drinking Water Advisory Council (NDWAC) met throughout 2014 to develop recommendations for the long-term LCR revisions. The report from this Working Group should be completed in mid-2015, and then the report will be sent to the full NDWAC later in the year. USEPA will then assess how the recommendations could be incorporated into the proposed revisions during the second half of 2015 or, more likely, in 2016. We will also see the third Six-Year Review of Drinking Water Standards in 2016. As previously discussed, chlorate and nitrosamines are being evaluated as part of the review of the microbial/disinfection by-products regulations. Hexavalent chromium (CrVI) will likely be discussed in the context of the review of the current total chromium regulation, and it is not clear whether USEPA is going to regulate CrVI separately.

AN INTERESTING YEAR As you can see, 2015 is going to be an interesting year Inside the Beltway. It’s hard to say what Congress will do, but rest assured that many members, particularly those who are newly in the majority in the Senate or who are newly elected, will be anxious to bring attention to their priority issues. USEPA will continue to make progress, albeit slowly, on the regulations. After all, the agency has to develop and review national drinking water regulations—it’s the law. —J. Alan Roberson is director of federal relations for AWWA in Washington, D.C. He can be reached at [email protected]. http://dx.doi.org/10.5942/jawwa.2015.107.0062


JO U R NA L AWWA | A P R IL 2015

17