Where Do Major Reform Efforts Stand Following Pruitt’s Exit from EPA?

By Mike Keegan

On July 5, President Donald Trump tweeted that U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt had resigned from his position as the head of the agency. The acting administrator is now Andrew Wheeler, who previously served as deputy administrator. Wheeler has pledged to implement Pruitt’s agenda to “reduce unnecessary regulatory burdens.”

Among his many positions, Wheeler has served as a staff director of the U.S. Senate Committee on Environment and Public Works (EPW), which has jurisdiction over the EPA and all environmental statutes including the Safe Drinking Water Act and Clean Water Act. From 1995 to 2009, he worked in the Senate, primarily as an aide for Sen. James Inhofe (Okla.) during Inhofe’s tenure as chairman of the EPW Committee.

During that time, the committee crafted and passed the Safe Drinking Water Act amendments of 1996, held numerous water issues hearings, advanced regulatory reform legislation including the Small System Drinking Water Act of 2005 and 2007. The committee also reacted to the 2006 Supreme Court ruling in Rapanos v. U.S. that challenged federal jurisdiction of U.S. waters and provided comprehensive analysis of the problems with EPA disinfection byproducts rules in 2005. The period was seen as productive for the small and rural water utility community by the National Rural Water Association (NRWA).

The following is a brief assessment of what is possibly at stake for the water sector with respect to five of the major EPA reform efforts that were initiated by Pruitt and will now be determined by Wheeler.

Revisions to the Lead and Copper Rule

In 1991, EPA initially promulgated the Lead and Copper Rule (LCR), which relies on the often misunderstood “treatment technique” versus a maximum contaminant level (MCL) to regulate lead and copper levels in drinking water. Prior to the lead in drinking water crisis in Flint, Michigan, the agency had initiated a process, mainly through the National Drinking Water Advisory Council (NDWAC), to recommend revisions to the rule. In August 2015, an NDWAC workgroup reported recommendations for the rule that retained much of current rule construct:

“The LCR should remain a treatment technique rule, but it can be improved based on the scientific knowledge that has emerged since the current LCR was promulgated.”

Mike Keegan

Subsequently, the nation and the Administration’s perspective of the EPA rule are now looked at through the experience of Flint. In February 2018, Pruitt convened top officials from across the U.S. government to formulate strategy to reduce childhood lead exposure and associated health effects. Prior to that in January, EPA convened a “Federalism” consultation for LCR changes that resulted in comments from state and local government officials, and most all the national water associations. The most controversial potential changes to the revised LCR are likely any new mandatory lead service line removal policy, changing the current action level to an MCL construction or lower action level, and increasing federal authority at the expense of state and local flexibility.

The National Rural Water Association is optimistic that Wheeler will continue Pruitt’s commitment to “cooperative federalism” and resist changes to the rule that curtail local and state authority and flexibility. NRWA filed comments to EPA urging the decoupling of in-home tap sample results and compliance monitoring for a treatment technique-based rule.  There is no legal mandate for EPA to craft revisions to the current rule and EPA has signaled that the earliest time the revisions could be released is 2019.

Waters of the United States (WOTUS) Rule

In February 2017, President Trump issued an executive order to scale back EPA’s hotly contested WOTUS rule that was crafted in 2015 under the Barack Obama Administration. In March 2017, EPA announced its intent to review and rescind or revise the rule. Subsequently on June 5, the EPA forwarded a narrower WOTUS proposed rule for White House review. The contents of the new proposal have not been released to the public and White House review is typically limited to 90 days. Pruitt had characterized the proposal as “answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”

Given that changing this rule to limit federal control was a key campaign pledge by the President and something Acting Administrator Wheeler had worked toward with Senator Inhofe, we think it is safe to conclude the Wheeler EPA will continue to advocate allowing states to have authority over intrastate waters under a Trump WOTUS.  Also, we expect to see any narrowing of the Obama 2015 rule to be immediately challenged in federal court.

A New PFAS EPA Drinking Water Standard (MCL)

On May 22, 2018, Administrator Pruitt announced at an EPA “summit” covering per- and polyfluoroalkyl substance (PFAS) contamination of drinking water issues in Washington that EPA will “take the next step” to evaluate the need for a drinking water standard for PFAS.  The Safe Drinking Water Act (SDWA) provides the EPA Administrator much discretion in their decision to craft an MCL for a new contaminant.  Under the SDWA, the choice to select a new contaminate for regulation is made, “in the sole judgment of the Administrator, [if] regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by public water systems.”

Many stakeholder groups are urging the EPA to determine a national standard (i.e. an MCL) for PFAS or a subclass of the compounds to provide for “regulatory certainty,” and to limit disparate standards from evolving among the states.

A New Perchlorate EPA Drinking Water Standard (MCL)

EPA is under a court order to propose a perchlorate MCL by Oct. 31, 2018, and issue a final regulatory decision by Dec. 19, 2019. Unlike PFAS, EPA did make a formal decision to promulgate a regulation for perchlorate on Feb. 11, 2011. This decision began a SDWA mandatory two-year process to propose a perchlorate rule which is being enforced by court order after the Natural Resources Defense Council (NRDC) filed a complaint in a federal district court in New York against EPA in February 2016. EPA has conducted multiple peer-reviews and public comment opportunities on the models of metabolism of perchlorate that the agency will use to determine a maximum contaminant level goal (MCLG). EPA’s peer-review panel has found the latest EPA model to be “fit for purpose.” However, AWWA has raised concerns with the modeling approach being used in an April 9, 2018 letter to EPA.

Considering Costs and Benefits in EPA’s Rulemaking Process

On June 7, 2018, EPA announced it will accept comments on how the agency estimates costs and benefits in the rulemakings.  The consideration and analysis of costs and benefits is integral to numerous provisions in Safe Drinking Water Act.

There is no shortage of complex and controversial decisions facing the 27th Administrator of the EPA. Here’ we’ve only looked at five issues just within the EPA’s Office of Water, and there are numerous other water issues to deal with, as well as numerous other general issues facing the administrator in the other program areas. Many of the issues have the potential to dominate the national conversation and impact elections to the highest national offices. All of the more that 30,000 small and rural community water and wastewater utilities that are members of NRWA are looking forward to a positive and productive relationship with EPA under the stewardship of Wheeler.

Mike Keegan is an analyst with the National Rural Water Association (NRWA) in Washington, D.C. NRWA has supported many of the proposals for regulatory modification that Pruitt was advancing and says it is very optimistic that EPA’s Acting Administrator Wheeler will advance and craft regulatory changes that will be helpful to small and rural water utilities, as well as the entire water sector.

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