DOJ, States Call On EPA To Clarify Water Act Scope Through Rulemaking
Last Updated on Wednesday, 09 March 2011 19:36
States and a top Justice Department (DOJ) official are calling on EPA to pursue a rulemaking to clarify the scope of the Clean Water Act (CWA) that includes a formal notice-and-comment period, saying that the agency's impending guidance on the issue is unlikely to provide sufficient certainty to the regulated community.
Top officials from EPA and the Army Corps of Engineers, however, say that while they will not rule out a regulation in the future, their plans for now are to issue a draft of the guidance and take comment before implementing it.
The White House Office of Management & Budget is still reviewing the guidance, though EPA is expected to release the document within weeks. But EPA's pending effort to clarify what wetlands, streams and other waterbodies are subject to federal permitting requirements generated extensive criticism at a March 8 meeting of state water regulators, who cited a confidential internal draft of the 38-page document that was obtained by Inside EPA.
EPA's acting water chief Nancy Stoner told the meeting of the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA) that the guidance aims to close "loopholes" in jurisdictional determinations following two Supreme Court rulings that created major confusion over the water law's scope.
However, several meeting participants questioned whether EPA can achieve those goals simply with a non-binding guidance document. John Cruden, DOJ's deputy assistant attorney general for the environment and natural resources division, suggested that the agency's goals would be better achieved by pursuing a CWA jurisdiction rule.
EPA has drawn criticism for other recent efforts to impose new regulatory requirements through guidance, including its strict mountaintop mining permitting guidance. But Cruden said, "Guidance is not rulemaking. And my legal advice to my clients when they're putting guidance together . . . is if you really, really want to do it, and you really think it would be of value to the regulated community, you probably can't do it in a guidance. So you can't look at a guidance document, any guidance document, and think that it solves all the issues. They never do."
Cruden also said he is convinced that the guidance document will trigger a legal challenge. "Without question, we will litigate the validity of that guidance," he said. EPA's mountaintop mining guidance is already the subject of pending litigation, as is another guidance on allowing states to avoid imposing fees on ozone emitters.
Todd Chenoweth, of the Texas Commission on Environmental Quality, praised EPA and the Army Corps, which issues CWA section 404 permits, for working together on the guidance and planning to release a draft of the guidance before implementing it. But he said states will still likely raise criticisms when commenting on the guidance, "and one of the criticisms is probably going to be, you ought to do this in a rule, not in guidance."
A state source said prior to the meeting, "While I don't share the thought that everything needs to go to rulemaking . . . this is one that needs a rulemaking." The source said Congress is unlikely to pass a bill clarifying the CWA's scope. "I'm guessing there's no political space for this at all on the Hill, so hunker down, gird your loins and try to get something through rulemaking would be my bet. It'll be grueling, but that's no reason to not try."
Legislation was introduced in several recent sessions of Congress to expand the CWA's scope in response to Supreme Court decisions that narrowed it. Those proposals were never able to gain traction, though, and their key champions -- Rep. James Oberstar (D-MN) and Sen. Russ Feingold (D-WI) -- both were defeated in the 2010 elections, leaving little hope that a legislative fix to CWA jurisdiction is possible for at least the next two years.
Stoner at the meeting said EPA and the Corps might eventually promulgate a new rule to define "waters of the United States," which determines jurisdiction, but did not indicate how soon that process would begin.
The Corps' Meg Gaffney-Smith told Inside EPA after the meeting that there is "no schedule" to promulgate a new rule and acknowledged that it may be difficult to begin the lengthy process involved in developing a regulation, because it has taken the agencies longer than expected to draft and release their pending guidance.
"Now, to get rulemaking done, it's going to be a challenge," Gaffney-Smith said during a brief interview after the ASIWPCA panel discussion on water law jurisdiction. "Unfortunately or fortunately, however you put it, we're coming up to two years to the next presidential election. If we are going to do a rulemaking, we need to move sooner rather than later, but that decision is going to be made at a high level."
States Question Role
At the meeting, Iowa Department of Natural Resources Chief Chuck Corell criticized EPA for leaving states out of the drafting process for the guidance, despite frequent statements from top agency officials praising the role states play implementing environmental programs. "We seem to be put in the same category as the general public or a stakeholder, we get to comment on the policy that's already been written," he told Stoner. "So I want to make that comment that I hear you saying one thing, but I see you doing just the opposite in this case."
Stoner said EPA had hoped to distribute the draft guidance much earlier, but that the process took longer than expected; however, she said the guidance would not be implemented immediately when it is released and that EPA would welcome extensive state input before issuing a final version of the guidance.
EPA and the Corps hope the guide will provide clarity to field staff tasked with determining when permits are required to discharge into or fill waterbodies that are not traditional navigable waters, such as ephemeral streams and wetlands. Whether permits are required for such marginal waters has been among the most vexing issues for federal agencies, states and regulated entities in the wake of two Supreme Court decision that narrowed the CWA's scope.
In Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers the court narrowed the basis for determining jurisdiction over intrastate waters in ruling that the presence of migratory birds was not enough to assert federal jurisdiction. And Rapanos et ux. et al. v. United States produced a 4-1-4 split decision that resulted in competing tests to determine jurisdiction under the water law.
Justice Antonin Scalia, writing for the conservative plurality, said a continuous surface connection between wetlands or tributaries and traditionally navigable waters was necessary for the marginal waters to fall under the CWA, while Justice Anthony Kennedy offered his own partially concurring opinion that said a "significant nexus" between marginal and navigable waters was sufficient to assert jurisdiction.
One of the guidance's key goals, Stoner said, would be to expand the water act's reach to tributaries and headwater streams that feed into larger river systems. She gave an example of a thousand-mile river system covered by the CWA that was fed by 10 miles of headwater streams that would not fall under jurisdiction.
"If you can dump anything in that first 10 miles is that river system protected?" she asked during the ASIWPCA panel. "Well, it's pretty simple to know that it isn't, and so that's what this is about. It's about protecting the system by making sure that all the small pieces are being protected."
Stoner also sought to preempt concerns from agriculture and other industries about the upcoming guidance. "It will maintain all the existing exemptions for various kinds of activities. It tries to clarify a few of them, but we're not trying to limit any of those," she said. -- Nick Juliano
SAB Urges Funding Boost For 'Visionary' New EPA Chemicals Risk Program
EPA's Science Advisory Board (SAB) says the agency's plan for a new chemicals research program is a "visionary" effort that could help the agency move toward using new toxicity testing methods as part of the regulatory process, urging the agency to boost funding for the effort beyond the $95 million proposed in fiscal year 2012.
Agency officials told a March 4 meeting of an SAB panel reviewing EPA's proposed FY12 Office of Research & Development (ORD) budget that the program, known as the Chemical Safety for Sustainability (CSS) research effort, could bolster the regulatory applications of its computational toxicology program, ToxCast. The program to date has been solely a research effort and not used by the agency in the development of rules.
EPA sees CSS as a "bridge" between ToxCast and its years-old Integrated Risk Information System (IRIS) risk assessment process, with the goal of using ToxCast testing in a regulatory context by screening chemicals to determine which substances to prioritize for full-blown risk assessments. Priority screening could ultimately help streamline the oft-criticized lengthy IRIS process.
EPA is proposing $584.1 million in overall funding for ORD in FY12, with $95.7 proposed for CSS. That compares to $77.8 million for the program in the FY10 enacted budget, EPA staff said at the SAB meeting.
But SAB members said the ambitious effort warrants more funding. Panelist Paige Tolbert, of Emery University, described the CSS framework as a trans-formative opportunity for the field of risk assessment, saying that the goals of the new program warrant a "major investment" by the Obama administration to support the effort.
Panel member George Daston, of Procter & Gamble, also called for more funding for the program, saying that the CSS effort marks the kind of "forward-thinking, visionary" approach that is needed to drive a paradigm shift in risk assessment. EPA should consider "making a much larger investment in these kinds of approaches" given the potential for widespread application of the CSS research throughout the agency, Daston said.
EPA unveiled Feb. 24 a draft framework for CSS, one of four new integrated programs within ORD meant to more closely align the agency's research with EPA Administrator Lisa Jackson's oft-stated priorities and fit in with ORD chief Paul Anastas' plans to reorganize the research offices.
The research agenda at CSS will include the cellular-based, or in vitro and in silico toxicity testing research housed within ORD's National Center for Computational Toxicology. It aims to implement recommendations in the landmark 2009 National Research Council report "Science and Decisions: Advancing Risk Assessment" while advancing Administrator Jackson's principles for modernizing chemical policies at the same time.
An integral part of the new chemicals research framework consists of its planned relationship with EPA's Human Health Risk Assessment (HHRA) program, which houses the agency's influential IRIS assessments used to form the basis of many EPA rules, interim CSS director Robert Kavlock said during the March 4 SAB meeting in Washington, DC. The Obama administration is proposing to fund HHRA at $45.7 million in FY12.
The CSS program will house EPA's NexGen risk assessment project, which aims to determine how to use the results of ToxCast in IRIS assessments. Barriers to using ToxCast testing that EPA is grappling with -- and that CSS could help to solve -- include the nascent nature of ToxCast data and what the data mean, and the fact that uncertainties over what the data raise major questions about how to use the data in developing rules.
CSS could be a "bridge" for incorporating the new toxicity testing methods into the IRIS program, and helping to "translate research into risk assessment," Kavlock said at the SAB meeting. The HHRA and CSS programs will be closely aligned with one another and share some of the same staff, with the idea of using mechanistic information about chemicals from the HHRA animal data to bolster ToxCast profiles, and move information about toxicity pathways, "once the science stabilizes," into IRIS, Kavlock said. "We're pretty well-positioned for that."
Kavlock said that EPA's ToxCast program is poised to generate more data in the next few years than it has previously, having amassed data on approximately 1,000 chemicals, including many pharmaceuticals from failed clinical trials. "Getting it on the desk tops of risk assessors is the key challenge," Kavlock said.
ToxCast Could Assist IRIS Prioritization
The high-throughput screening research done within CSS could eventually be used to help prioritize chemicals and toxicity endpoints for full-blown IRIS assessments, Becki Clark, acting director of EPA's National Center for Environmental Assessment (NCEA), part of the HHRA research program, told the SAB panel March 4. Clark added that the two research agendas are working closely with one another to try and meet the goals of CSS.
Up to this point, EPA has considered ToxCast strictly a research program and not ready for use in regulatory decisions. Kavlock and National Health and Environmental Effects Research Lab director Hal Zenick argued as much in a June 2010 memo pertaining to the agency's Endocrine Disruptor Screening Program.
But Clark and Kavlock agreed that closer integration with IRIS could benefit both the regulatory applicability of ToxCast as well as eventually help streamline IRIS' lengthy process for assessing chemical risk.
"The role for single chemical assessments is not going to go away," Clark said, but the work CSS will be doing is "absolutely vital" to IRIS, and can be used to help narrow down toxicity endpoints when doing IRIS assessments.
And SAB panelist Thomas Wallsten, of University of Maryland, suggested that CSS staff might begin drafting a tentative plan for using the new toxicity data in IRIS, particularly how the agency intends to support the new data during the IRIS review process and "probably litigation."
Panelist Eileen Murphy, of Rutgers University, called the CSS program the "most significant" of the integrated research programs underway at the agency.
Wallsten agreed, saying that the work done at CSS would become "pivotal" to much of what the agency does in the future. "It's self-evident this program serves multiple needs of EPA."
EPA research chief Paul Anastas, speaking to the SAB panel March 3, called the transition to the new CSS framework "imperative" to improving methods of toxicity testing in keeping with the National Academy of Sciences landmark 2007 report, saying "it's almost difficult to justify the status quo."
EPA has continued to struggle with how to implement the new toxicity methods, but most are in agreement that a paradigm shift is necessary if EPA is to keep up with assessing risks for increasing volumes of untested industrial chemicals in the marketplace.
The SAB panel will be preparing their comments in report form for recommendations to Congress on the FY12 budget request. -- Bridget DiCosmo
Industry Cites EPA Uncertainties In Opposing Stricter PM10 Standard
EPA officials at recent roundtables with agricultural stakeholders and at Hill hearings are citing uncertainties on the benefits of tightening EPA's existing coarse particulate matter (PM10) standard, prompting industry sources to cite the agency's statements to fight a stricter PM10 standard they say would be difficult if not impossible for rural areas to meet.
A bipartisan group of senators has already written to EPA Administrator Lisa Jackson urging her not to propose tightening the PM10 standard when the agency concludes its ongoing review of the existing national ambient air quality standard (NAAQS) for the pollutant. Rep. Kristi Noem (R-SD) meanwhile attached a rider to the House-passed fiscal year 2011 continuing resolution (CR) that would prevent EPA from finalizing any revised PM10 NAAQS.
The potential for a stricter PM10 standard is also likely to be a key issue at a March 10 House Agriculture Committee hearing on the "impact of EPA regulation on agriculture," where Jackson will be the sole witness. Other topics could include EPA's new greenhouse gas rules and its soon-to-be-released draft guidance to expand the scope of the Clean Water Act, among other activities that have generated concern from the agriculture community.
EPA is reviewing its 24-hour PM10 standard of 150 micrograms per cubic meter (ug/m3) retained in 2006. As an initial step, agency staff have crafted a policy assessment of possible revisions, including keeping the standard the same or tightening it between 65 and 85 ug/m3, while revising the form of the standard to allow for more exceedences of the standard. The policy paper will inform a proposed revision to the standard slated for issuance in August.
But lawmakers are already pushing back against any stricter PM10 standard by citing concerns from agricultural and other rural-based industries that they would face the greatest burdens under a tighter standard. Coarse PM, sometimes referred to as "dust," can be more prevalent in rural areas with large agricultural or mining operations.
In an attempt to hear and address concerns from industry and lawmakers, EPA has been holding a series of roundtables in its various regions with agricultural stakeholders. At a recent meeting in EPA Region VII, agency staff acknowledged specific uncertainties with the scientific body of knowledge on rural PM10, according to sources who attended the meeting. EPA has held five other meetings on the issue in various cities covering states in agency Regions V through X.
According to an agency spokesman, the meetings follow up on a commitment by Jackson to "ensure that the agriculture community has the opportunity to provide EPA with information before the agency develops" a proposed rule revising the PM standards. "EPA staff will provide the information we receive at the meetings to the Administrator for her to consider as she determines what standards to propose to protect public health as required by law. EPA has not made any decisions on the standards at this time," the spokesman adds.
EPA staff said at the Region VII meeting that most studies examining the health effects related to PM10 have been focused on urban areas and that not enough information yet exists about PM10 in rural areas, sources say.
Jackson also acknowledged uncertainty to making the standard more stringent at a March 3 House Appropriations Committee interior panel hearing. She said that "There has been no regulatory change proposed" and noted that the policy assessment for PM10 "interestingly enough . . . gives equal weight to retaining the current standards as it does to changing them."
EPA's comments are prompting industry sources to advocate against any tightening of the PM10 standard, saying there is no scientific justification for a stricter limit. One source who attended a Region VII meeting says it remains a "concern" that despite flagging uncertainties EPA has not ruled out tightening the standard.
One major uncertainty is the difference between urban PM10, largely the result of industrial plants and motor vehicle traffic, and rural PM10, which is a result of the workings of agriculture industry (tilling, plowing, harvesting) as well as more crushed rock or dirt roads. Urban PM10 as well has a different makeup than rural PM10, sources argue, with the former posing a far greater health risk because of the industrial PM emissions.
A stricter PM10 standard would impose significant costs on farms for questionable benefits, critics say. In the event that areas are found to be out of attainment and a state implementation plan is put into effect, potential aims of PM10 reductions could include limits on harvesting at night and other dust control measures and requiring farmers and ranchers to pave dirt or crushed gravel roads, both of which come with significant costs, sources say.
Senators Raise Concerns
Sens. Richard Lugar (R-IN), Kent Conrad (D-ND) and 30 senators raised these concerns in a Feb. 15 letter to Jackson, saying that while any attempt "to lower the standard may not be significantly burdensome in urban areas," a proposed tightening "will likely have significant effects on businesses and families in rural areas."
The senators point to the several sources of dust in agricultural communities, including tilling soil, harvesting crops and driving on unpaved roads, saying that "the creation of dust is unavoidable for the agriculture industry."
The senators also say that, "Given the ubiquitous nature of dust in agricultural settings and many rural environments, and the near impossible task of mitigating dust in most settings, we are hopeful that the EPA will give special consideration to the realities of farm and rural environments, including retaining the current standard."
One Hill source, meanwhile, says that if Noem's rider to the CR blocking EPA from issuing a stricter PM10 standard is dropped during conference negotiations to reconcile the House CR and whatever CR the Senate passes, the lawmaker will "look into other vehicles and other options" for the rider, including stand-alone legislation. -- Bobby McMahon
EPA May Lack Budget, Authority To Gather New Equity Data For Lead Rule
EPA officials say efforts to consider the environmental justice impact of lead contamination of drinking water as part of revisions to its lead and copper drinking water rule (LCR) face major hurdles, including high costs of collecting equity data at a time of tight budgets and questions over whether EPA has authority to collect such data.
EPA is examining its entire drinking water program to determine how and when to consider environmental justice issues -- a top priority for EPA Administrator Lisa Jackson. EPA at a March 3 public meeting asked for stakeholder feedback on several drinking water rules: revisions to the LCR; regulatory determinations for the third contaminant candidate list; a possible rule for volatile organic compounds; and an expected drinking water standard for perchlorate.
At the meeting, stakeholders said that to understand environmental justice concerns related to lead in drinking water, it would be necessary to compare information about the location of lead pipes and incidences of high lead in drinking water with income data -- information that EPA does not have. EPA officials says it is unclear whether being a member of a low-income or minority community impacts exposure to lead in drinking water.
Given the hurdles in collecting new equity data for the LCR revisions, one EPA official says the agency is considering using currently held enforcement data to gain an understanding of equity impacts.
EPA is currently revising the LCR, anticipating proposing a new rule in spring 2012. The LCR is a "treatment technique rule," according to an EPA presentation from the meeting in Washington, DC. The rule dictates sampling, corrosion control, public education and lead service line replacement requirements to reduce the amount of the metals in drinking water that come from service lines and household plumbing.
The agency has asked the Drinking Water Committee of the agency's Science Advisory Board (SAB) to examine how new studies could inform the rulemaking, with a meeting scheduled for March 30-31.
Drinking water utilities have urged SAB to examine the differences in lead levels from leaving lead service lines in place, partially replacing the lines or fully replacing the lines.
In a Feb. 24 letter to EPA, the American Water Works Association (AWWA) asks that SAB to consider whether available studies accurately show the effects of optimized corrosion control on blood lead levels in children, and whether they "provide a clear scientific basis for understanding the principle source of risk to children in homes that have service lines."
AWWA, which represents drinking water utilities, also questions the ability of committee members, asking EPA to determine how well they will be able to understand: "1. Physiology of lead from drinking water ingestion by young humans to adverse consequences; 2. Drinking water distribution system operations, maintenance, and construction; 3. Actual lead service line replacement field practice; 4. Epidemiological analysis where there is a putative link between short term drinking water contamination and quantifiable indicators of contaminant intake (ala. blood lead levels), and 5. The chemistry of lead release from lead pipe surfaces."
EPA last revised the LCR in 2007, intending to prevent the type of high-profile lead contamination that occurred in Washington, DC, in 2004 and included requiring drinking water utilities to obtain regulatory approval before changing their treatment processes or adding new water sources.
But stakeholders have raised concerns that the changes still failed to address the risks of lead in drinking water, with critics saying the agency's sampling methods "cherry picks" locations likely to have lower lead levels.
The upcoming revisions will address replacement of lead service lines and tap sampling techniques. Systems that have optimized corrosion control and have lead service lines, but still exceed action level must: replace 7 percent of their lead service lines annually; replace the portion of the line that the system owns; offer to replace the customer's portion of the line at the customer's cost; provide information to customers about flushing; collect samples within three days of partial replacement, and tell the customer the results, an EPA presentation from the March 3 meeting says.
But a recent study from the Centers for Disease Control & Prevention found partially replacing lead drinking water service lines fails to decrease the risk of lead, contrary to information on which EPA based its previous rule.
EPA Weighing EJ Concerns
As part of the lead rule review, EPA is weighing how to address concerns about impacts in environmental justice communities of minorities or low-incomes. In 1991, when the LCR was first promulgated, EPA required water systems to collect information about lead service lines, which some stakeholders at the March 3 meeting suggested should be used to consider environmental justice issues. But EPA officials and industry stakeholders said at the meeting information is out of date, particularly given lead service line replacements in many water systems since then, and incomplete since it was never required to be reported to EPA in the first place.
One environmentalist urged EPA to require national reporting to EPA of where lead service lines exist. But an EPA official says that it would be difficult for drinking water systems to gather that information, particularly given the agency's tight budget and a Congress that appears somewhat focused on reducing the agency's budget even more.
"That would be a pretty substantial burden or cost to place on systems," the EPA official said. "They'd have to invest a lot of time or effort to do that" in order to update their data lead service lines since the 1990s. "So it's an interesting question, but there certainly are some difficult challenges associated with that sort of mandatory reporting."
EPA is required by the White House Office of Management & Budget to weigh the costs and benefits of all information collection requests to show that the burden on those providing information to the federal government will be worth the outcome. Eric Burneson, EPA's acting deputy director of the Office of Groundwater & Drinking Water, noted there are nearly 50,000 drinking water systems in the United States. "And the costs and burden associated with reporting and getting the data is substantial, so I believe ultimately the business case was not made" in 1991 to have water systems report their collected information on lead pipes to EPA.
Stacy Jones of the Indiana Department of Environmental Management said that collecting that information from water systems and providing it to EPA "would be a huge burden on the [state] agency," and as it is, "we're completely overworked." An EPA Region V official, Miguel Del Toral, agreed.
Questions About Authority
EPA's Burneson also noted at the meeting that the agency may not have the authority to require water systems to report information on income and demographics related to lead pipe location. "The degree to which we would have authority to collect data about demographics would be one that we would have to pose to our attorneys. I'm not sure that the Safe Drinking Water Act clearly gives us that authority, but that would be something to explore," he noted.
Further, he noted that there are "other issues that would come into play" that could hinder success of such an effort: "The systems I don't think are readily sitting on any information related to the income of the people they serve, so they'd have to go out and survey their customers and convince them to provide them that data, which, you can imagine there might be some reluctance among the customers to tell them just how much money they make."
Burneson, however, said the agency is considering looking to information it already has to determine whether environmental justice issues are present and need to be considered in the LCR.
"Just to throw out some of the ideas we've had for disproportionate impact analyses, we do have information on the systems with blood action level exceedences, on locations where there are violations of the lead and copper rule -- we could try and correlate that information to the demographic information that's out there right now, trying to see if there's a disproportionate incidence of lead action level exceedences where there are . . . low income or environmental justice communities," Burneson said.
Burneson noted, though, that blood levels would not show where lead comes from, though it would give an estimation of elevated blood levels.
The official also noted that one environmentalist at the meeting made "a good point that there's an oversight role there as well, that EPA could use that data to basically confirm that the sampling schemes of the systems have in place are in deed targeting the highest . . . communities with the highest level of lead in drinking water."
"Obviously I can't say we have unlimited resources to do all of these things, but I think we've gotten some very good suggestions," Burneson said.
Burneson also noted at the meeting that what EPA does know about lead is that the "number of systems that exceeded the lead action level has ranged from one to four percent in the life of the lead and copper rule. Those systems have been fairly evenly distributed throughout the United States, though there is a prevalence of lead pipes in the upper Midwest and Northeast regions."