End-of-Year Update Reviews Regulatory Progress in 2015

End-of-Year Update Reviews Regulatory Progress in 2015

In December, the American Water Works Association (AWWA) released its End of 2015 Regulatory Update, reviewing a busy year in regulatory development in the U.S. water industry, including Congressional legislation passing a major trade bill, a five-year transportation bill, a cybersecurity overhaul and a two-year budget and debt deal.

AWWA?s update focuses on specific regulatory actions including a water sector cybersecurity report; the final rule defining Waters of the U.S.; health advisories for cyanotoxins; and a final report from NDWAC Lead and Copper Rule Working Group. Here?s a brief summary of some of the regulatory actions as presented by AWWA in the report.

Water Sector Cybersecurity Report

The final CIPAC Water Sector Cybersecurity Strategy report was approved by the Water Sector Coordinating Council and Government Coordinating Council (WSCC/GCC) in May 2015. This report was prepared in response to Executive Order 13636, Improving Critical Infrastructure Cybersecurity, issued February 2013, which included a requirement to review implementation guidance or supplemental materials necessary to support sector-specific approaches to the NIST Cybersecurity Framework. The guidance and use-case tool developed by AWWA to support the water sector?s voluntary application of the NIST Cybersecurity Framework is a central element of the final CIPAC report. This includes having AWWA take the lead in development of a survey in 2016 to assess the sector?s progress in addressing cyber security risks. In addition, AWWA will begin assessing options to update the guidance and use-case tool to improve functionality in supporting utilities of all sizes and types.

Waters of the U.S.

On May 27, EPA and the Corps of Engineers published the final Waters of the U.S. rule, which was supposed to clarify some jurisdictional issues. This rulemaking is extremely controversial, with lots of people and powerful organizations expressing serious reservations with the final rule. Litigation has resulted in this rule being stayed. Legislation has also been introduced to negate the final rule, but has not moved in Congress. It?s unclear if such a bill would pass both sides of Congress, and even if it did, whether the President would veto it.

Cyanotoxins

On June 15, EPA released health advisories (HAs) for two cyanotoxins. For children younger than six, the 10-day HA levels are 0.3 ?g/L for microcystin and 1.6 ?g/L for cylindrospermopsin. For children six and older and adults, the 10-day HA levels are 0.7 ?g/L for microcystin and 3.0 ?g/L for cylindrospermopsin. EPA simultaneously released some relatively detailed monitoring, treatment and communications recommendations for water systems. Cyanotoxins (as a group) were listed on the Draft CCL4 and ten cyanotoxins/groups were included in the proposed UCMR4. How states interpret these numbers and what actions systems might have to take if concentrations increase above these numbers is still not clear. Many systems have been concerned about implementation of these HAs during the summer, particularly with Level of Quantitation (LOQ) for the ELISA method in a laboratory (0.3 ?g/L) being exactly at the 10-day HA level. AWWA has developed a new cyanotoxins resource community webpage that includes a cyanotoxin treatment calculator, as well as the Water Utility Manager?s Guide to Cyanotoxins (in conjunction with the Water Research Foundation) that provides an overview of the many complex technical issues surrounding cyanotoxins.

On Aug. 7, 2015, President Barack Obama signed into law the Drinking Water Protection Act (P.L. 114-45) that amends the SDWA with the intent to control harmful algal blooms in drinking water. The legislation required EPA to develop and submit a plan to Congress by Nov. 5, 2015 to evaluate harmful cyanotoxins? risk to human health and to recommend feasible treatment options to mitigate any adverse public health effects. EPA submitted its Algal Toxin Strategic Plan to Congress in mid-November, and this plan was essentially a compilation of ongoing and planned research activities. There are still lots of analytical method, occurrence and treatment questions for cyanotoxins that need to be resolved before moving forward in the regulatory development process.

Given the focus in Congress and at EPA, regulations addressing cyanotoxins, either as a group or individually, are likely at some point in the future. Cyanotoxins were listed on the Draft Fourth Contaminant Candidate List (CCL4) and were also included on the proposed Fourth Unregulated Contaminant Monitoring Rule (UCMR4). Assuming EPA waits until the UCMR4 monitoring is completed at the end of 2020, EPA could move the UCMR4 cyanotoxins forward in the regulatory development process with the fourth round of regulatory determinations that is scheduled to be finalized in 2021. A proposed cyanotoxins rule could be proposed two years later in 2023, and final rule approximately two years after the proposal in 2025. The EPA Administrator has the authority to develop an ?emergency regulation? if the circumstances warranted such action, such as several ?Do Not Boil/Do Not Use? orders in a single year.

Lead and Copper Rule

A Lead and Copper Rule Working Group (LCRWG) under the National Drinking Water Advisory Council (NDWAC) met throughout 2014-2015 to develop recommendations for the long-term LCR revisions. The final LCRWG report was released on Aug. 24, and the report was approved by the full NDWAC at its fall meeting on Nov. 18-20. The LCRWG process has been slow due to breadth and depth of the issues being discussed, such as developing inventories of lead service line, lead service line replacement, optimized corrosion control, how in-home sampling might be revised, corrosivity of water for new/replaced copper plumbing, etc. After the recent NDWAC approval, EPA now has to assess how the recommendations could be incorporated into proposed revisions, and that assessment and development of rule language could take a year or more. Therefore, the proposed revisions are not likely to be published until early 2017, with a possible final rule in either late 2018 or 2019.

Strontium

In 2014, AWWA published a briefing paper on the potential regulatory implications for strontium to provide some contextual information for utilities. A strontium regulation would potentially impact many small groundwater systems, and depending on the number ultimately selected, the national compliance cost for a strontium regulation could be in the same ballpark as the revised arsenic regulation in 2001.

Coming in 2016

Given what we know about EPA?s workload, we will likely see two major drinking water regulatory actions in 2016: 1. Final Fourth Contaminant Candidate List (CCL4); and 2. Third Six-Year Review of existing regulations.

AWWA hosted two workshops that included water systems, consulting engineers, state regulators and research to discuss whether the federal regulatory requirements for disinfectant residual needed to be revised as part of the Third Six-Year Review. These two workshops resulted in a letter to EPA?s Office of Groundwater and Drinking Water that listed some topics that EPA should consider as part of the Third Six-Year Review. There are still lots of research gaps surrounding disinfectant residuals, and it is not clear at this time whether or not EPA has adequate data or information to make an informed decision about if or how to potentially revise the federal disinfectant residual requirements.

Regulatory delays

While some might think EPA 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, the above actions from 2015 show that EPA has been very busy on the regulatory side. Several steps are necessary to bring new or revised national drinking water regulations to the finish line and to use the best available, peer-reviewed science as required by the Safe Drinking Water Act (SDWA).

This summary is an excerpt of the American Water Works Association?s (AWWA) End of 2015 Regulatory Update, authored by J. Alan Roberson, P.E., AWWA director of federal relations.
To view the full report, visit awwa.org.? ?

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