About Dan Askenaizer

EPA and Army Issue Revised WOTUS Definition

The week of August 28, 2023, the Environmental Protection Agency (EPA) and the Department of the Army issued “….a final rule amending the 2023 definition of “waters of the United States” [WOTUS] to conform with the recent Supreme Court decision in Sackett v. EPA. The agencies are committed to following the law and implementing the Clean Water Act to deliver the essential protections that safeguard the nation’s waters from pollution and degradation. This action provides the clarity that is needed to advance these goals, while moving forward with infrastructure projects, economic opportunities, and agricultural activities.”

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” said EPA Administrator Michael S. Regan. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all. Moving forward, we will do everything we can with our existing authorities and resources to help communities, states, and Tribes protect the clean water upon which we all depend.” [text quoted is from EPA’s Press Release]

A copy of the pre-publication Federal Register amended rule is here (Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States). Also here is (1) an EPA/Department of the Army Fact Sheet (FINAL_WOTUSPublicFactSheet08292023) and (2) a document (Regulatory Text Changes to the Definition of Waters of the United States at 33 CFR 328.3 and 40 CFR 120.2)showing the specific changes to Code of Federal Regulations text [40 CFR 120.2 and 33 CFR 328.3]. Once published in the Federal Register, the amended rule will be in effect.

EPA and the Department of the Army will hold a public webinar on the amended rule on September 12, 2023 (registration for this webinar is already at maximum capacity and new registrations are not available). EPA and the Department of Army plan to schedule two additional public webinars in September (information on dates and times is not yet available).

EPA Press Release
https://www.epa.gov/newsreleases/conform-recent-supreme-court-decision-epa-and-army-amend-waters-united-states-rule

Revised California NPRM for Direct Potable Reuse

On July 20, 2023 the State Water Resources Control Board (SWRCB) published a Notice of Proposed Rulemaking (NPRM) for the Direct Potable Reuse (DPR) regulations.

On Friday, August 25, 2023, SWRCB posted an updated DPR NPRM (revisednotice_sbddw-23-001_dpr_082523). SWRCB will hold a public hearing on the proposed DPR regulations on September 7, 2023 (written public comments are due September 8, 2023). The updated NPRM indicates a new meeting room for the public hearing and that the public hearing on the proposed DPR regulations will start no earlier than 10:30 am (the original notice indicated a 9:30 am start time for the public hearing).

A link to watch the public hearing and information on presenting oral comments is provided in the NPRM.

EPA Posts First Release of UCMR5 Occurrence Data

The Environmental Protection Agency (EPA) posted the first release of results from the Unregulated Contaminant Monitoring Rule 5 (UCMR5). A copy of EPA’s summary of the results is here (ucmr5-data-summary_July 2023 ) Table 3 presents the summary of results to date.

Files with the individual results have also been posted on EPA’s web site at the following location:
https://www.epa.gov/dwucmr/occurrence-data-unregulated-contaminant-monitoring-rule#5

Background: The final UCMR5 was published on December 27, 2021. Under the UCMR5, monitoring for 29 per- and polyfluoroalkyl substances (PFAS) and lithium will occur during 2023-2025. Monitoring will be as follows: one year of quarterly monitoring for surface water systems, and two samples (5 to 7 months apart) in a 12 month period for groundwater systems. Required participation in UCMR monitoring is based on population served.

ASDWA and Others Urge Administration to Support Actions to Address PFAS Contamination

Yesterday, the Association of State Drinking Water Administrators (ASDWA), the Environmental Council of the States (ECOS) and the Association of State and Territorial Health Officials (ASTHO) sent a 2-page letter (ASDWA_ECOS_ASTHO-Request-to-White-House-to-Remove-Sources-of-PFAS ) to the Biden Administration to “…..request that the administration focus additional federal resources and support to federal agencies and the actions they are undertaking to address PFAS contamination.”

Regarding EPA’s proposed PFAS MCLs, the letter states:
“EPA’s recently proposed PFAS drinking water regulation will require the installation of advanced treatment at several thousand water systems which will reduce PFAS contamination in drinking water and increase public health protection. Water systems do not manufacture or generate PFAS and serve as the last line of defense in preventing PFAS contamination from reaching the taps of their customers. While funding from the Bipartisan Infrastructure Law (BIL) will pay for a portion of the total capital costs for advanced treatment for PFAS removal in drinking water across the country, we know additional resources and actions will be needed. The burden of addressing PFAS contamination should not fall on communities served by these water systems, and we cannot fully address PFAS in drinking water without tackling the widespread PFAS contamination throughout the environment. Federal agencies must work to reduce the use of PFAS across a broad range of consumer products and the ultimate release of the substances into our air, water, and soils.”

Proposed Cr6 MCL Errata Sheet

On June 16, 2023 the Division of Drinking Water (DDW) posted a Notice of Proposed Rulemaking (NPRM) proposing a Maximum Contaminant Level (MCL) of 10 µg/L for hexavalent chromium (CrVI). The documents posted at that time were the NPRM, Title 22 regulatory text and the Initial Statement of Reasons (ISOR) along with a number of attachments to the ISOR. Yesterday, DDW posted an errata sheet for the ISOR (copy of the errata sheet is here (CrVI Proposed MCL_ISOR Errata Sheet_2023-07-31 )).

DDW will hold a public hearing on the proposed CrVI MCL on August 2, 2023, starting at 1:00 pm.

The public hearing can be viewed at the following location:

The original public comment period was 45-days, with a deadline of August 4, 2023 to submit written comments. Also enclosed is the Revised NPRM indicating that the deadline to submit written comments has been extended one week to August 11, 2023 (NPRM_Second Revised_notice_Cr6 MCL_080123 ).

Attorneys General Challenge 3M PFAS Settlement

In June 2023, 3M agreed to pay at least $10.3 billion to settle a number of lawsuits regarding contamination of drinking water with PFAS. Yesterday, AP News reported that Attorney Generals from 19 States, Washington DC and two territories have asked a court to reject that settlement.

Text below is copied from AP News article:
“The deal announced in June doesn’t give individual water suppliers enough time to determine how much money they would get and whether it would cover their costs of removing the compounds known collectively as PFAS, said the officials with 19 states, Washington, D.C., and two territories. In some cases the agreement could shift liability from the company to providers, they said.

“While I appreciate the effort that went into it, the proposed settlement in its current form does not adequately account for the pernicious damage that 3M has done in so many of our communities,” said California Attorney General Rob Bonta, leader of the multistate coalition.”

Link to yesterday’s AP News Article:

Link to AP News June Article “3M reaches $10.3 billion settlement over contamination of water systems with ‘forever chemicals.’:

EPA Announces $58M for Lead Reduction at Schools and Child Care Facilities

On July 24, 2023, at an event in Boston, the Environmental Protection Agency (EPA) “….announced $58 million in grant funding from President Biden’s Investing in America agenda to protect children from lead in drinking water at schools and childcare facilities across the country. Thanks to the Bipartisan Infrastructure Law, activities that remove sources of lead in drinking water are now, for the first time, eligible to receive funding through the Water Infrastructure Improvements for the Nation Act (WIIN).”

Link to EPA Announcement:
https://www.epa.gov/newsreleases/biden-harris-administration-announces-58-million-reduce-lead-schools-and-childcare

The announcement received media coverage, examples below:

Link to AP News article:
https://apnews.com/article/lead-drinking-water-schools-day-care-89a1582b6ad1fb7160c57aea08b4ccd0

Link to US News and World Report article:
https://www.usnews.com/news/health-news/articles/2023-07-25/epa-awards-58-million-to-help-schools-daycare-centers-remove-lead-from-drinking-water

At the same event, EPA announced release of an updated: “Voluntary School and Child Care Lead Testing & Reduction Grant Program: Implementation Document for States and Territories.” Copy here (Final_FY23_VoluntarySchoolandChildCareLeadTestingReductionGrantProgram_508 ). The text below is copied from Section 1. Overview of the enclosed Implementation Document.

“This document provides information on how EPA intends to implement and manage the state Voluntary School and Child Care Lead Testing and Reduction Grant Program (the grant program). Designed to support reducing lead exposure to children, who are the most vulnerable population, the objective of the grant program is to support lead testing and reduction activities in drinking water at schools and child care facilities. This document provides eligible recipients an explanation of the implementation process and provides eligible recipients with direction on the process for applying for grant funding, in addition to program requirements and restrictions.”

SWRCB Proposed DPR Regulations Published

On July 20, 2023, the State Water Resources Control Board (SWRCB) published the Notice of Proposed Rulemaking (NPRM) for the proposed Direct Potable Reuse (DPR) regulations.

Copies of the NPRM, proposed DPR regulations and the SWRCB’s Initial Statement of Reasons (ISOR) are below.
Notice of Proposed Rulemaking
NPRM_Proposed DRP Regulations
Proposed DPR Regulations
DPR Proposed Regulations
DPR Initial Statement of Reasons
DPR Initial Statement of Reasons

The SWRCB will hold a public hearing at 9:30 am, on September 7, 2023. The deadline to submit written comments is September 8, 2023. A link to watch the public hearing and information on presenting oral comments is provided in the NPRM.

OEHHA Second Draft PFAS PHGs

In July 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) published, for review and comment, draft Public Health Goals (PHGs) for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS).

Last week, OEHHA released a second draft of the proposed PHGs. The proposed PHGs just released are the same as published in 2021, and are presented below:

PFOA – 0.007 parts per trillion (ppt)
PFOS – 1 ppt

The deadline to submit public comments is August 14, 2023.

The proposed PHGs are based on the one in a million cancer risk estimates. According to information posted by OEHHA, the PFOA proposed PHG is based on kidney cancer in humans, and the PFOS proposed PHG is based on liver and pancreatic cancer in animal studies.

OEHHA’s announcement (https://wqts.com/wp-content/uploads/2023/08/PFAS-PHGs-OEHHA-Announcement.pdf ).

OEHHA’s second draft Technical Support document for the proposed PHGs can be found at the following link:
https://oehha.ca.gov/media/downloads/water/public-health-goal/pfoapfosseconddraft071423.pdf