Laura Gatz got December 2021 off to a great start by updating (29 November 2021) this CRS report: 'Contaminants of Emerging Concern Under the Clean Water Act'.
Download CRS_Report_Contaminants_Emerging_Concern_CWA_29Nov2021
Summary
Recent decades have seen increased national attention to the presence of emerging contaminants or contaminants of emerging concern (CECs) in surface water and groundwater. Although there is no federal statutory or regulatory definition of CECs, the term generally refers to unregulated substances detected in the environment that may present a risk to human health, aquatic life, or the environment, and for which scientific understanding of potential risks is evolving. CECs include many different types of manufactured chemicals and substances (e.g., pharmaceuticals, industrial chemicals, agricultural products, and microplastics) as well as naturally occurring substances (e.g., algal toxins). Data on CECs that would help determine their risk to humans, aquatic life, or the environment are often limited. Increased monitoring and detections of one particular group of chemicals, per- and polyfluoroalkyl substances (PFAS), has recently heightened public and congressional interest in CECs and prompted a broader discussion about how CECs are identified, detected, and regulated and whether additional actions should be taken to protect human health and the environment. While several statutes provide authorities to the U.S. Environmental Protection Agency (EPA) and states to address CECs, this report examines authorities available under the Clean Water Act (CWA)—which Congress established to restore and protect the quality of the nation’s surface waters.EPA has several CWA authorities it may use to address CECs, although it faces some challenges in doing so. Under the CWA, a primary mechanism to control contaminants in surface waters is through permits. The statute prohibits the discharge of pollutants from any point source (i.e., a discrete conveyance) to waters of the United States without a permit. The CWA authorizes EPA and states to limit or prohibit discharges of pollutants in the National Pollutant Discharge Elimination System (NPDES) permits they issue. These permits incorporate technology-based and water-quality-based requirements.
The CWA authorizes EPA and states to address CECs through technology-based effluent limitations using national Effluent Limitation Guidelines and Standards (ELGs) or by setting technology-based effluent limits in NPDES permits on a case-by-case basis. The CWA requires EPA to publish ELGs, which are the required minimum standards for industrial wastewater discharges. The CWA also requires EPA to annually review existing ELGs and publish a biennial plan that includes a schedule for review and revision of existing ELGs, identifies categories of sources discharging toxic or nonconventional pollutants that do not have ELGs, and establishes a schedule for promulgating ELGs for any newly identified categories. The CWA also authorizes EPA and states to use certain NPDES permit authorities to manage CECs, such as imposing technology-based effluent limits on a case-by-case basis. Although EPA and states have these authorities available to address CECs, there are some challenges to doing so, including a lack of data available to support new or revised ELGs.
The CWA also authorizes EPA and states to address CECs through water-quality-based requirements. The CWA requires EPA to publish, and “from time to time thereafter revise” water quality criteria that reflect the latest scientific knowledge. These criteria are recommendations to states and tribal governments for use in developing their own water quality standards, which they use to protect and restore waters and to inform water-quality-based effluent limits in permits. Although EPA and states have authority to address CECs through water-quality-based requirements, they often lack data needed to support development of criteria or water-quality-based effluent limitations.
The CWA also authorizes EPA to designate contaminants as toxic pollutants or as hazardous substances, which may trigger other actions under the CWA and the Comprehensive Environmental Response, Compensation, and Liability Act.
Recent congressional interest in CECs has largely focused on addressing one particular group of CECs—PFAS—and on addressing them through several statutes. In the 117th Congress, the House Subcommittee on Water Resources and Environment held a hearing focused on CECs and the CWA’s framework for addressing them in surface waters. Some Members have also introduced bills that propose to address PFAS or other CECs using CWA authorities. In addition, Congress passed the Infrastructure Investment and Jobs Act (P.L. 117-58), which provides $1 billion over five fiscal years through the Clean Water State Revolving Fund to address emerging contaminants in wastewater treatment plants.
Cutting yo the chase...
Legislation in the 117th Congress
Recent congressional interest in CECs has largely focused on addressing one particular group of CECs—PFAS—and addressing them through several statutes, such as the Safe Drinking Water Act.130 In the 117th Congress, some Members have continued to introduce bills that would direct EPA to take regulatory and other actions to address PFAS under several environmental statutes. Some bills introduced in the 117th Congress also propose to address PFAS, microplastics, or other CECs using CWA authorities. In October 2021, the House Transportation and Infrastructure Committee, Water Resources and Environment Subcommittee, held a hearing focused on CECs—with particular attention to PFAS and microplastics—and the CWA’s framework for addressing such contaminants in surface waters.131 In addition, Congress passed the Infrastructure Investment and Jobs Act, enacted on November 15, 2021 (IIJA; P.L. 117-58), which provides $1 billion over five fiscal years for the primary financial assistance program that supports wastewater infrastructure—the Clean Water State Revolving Fund program, authorized by the CWA—for a range of projects to address emerging contaminants.Bills introduced by Members in the 117th Congress to address PFAS, microplastics, or other CECs using CWA authorities include the following:
H.R. 1915, the Water Quality Protection and Job Creation Act of 2021, would amend the CWA to create, reauthorize, and revise several programs. The bill would create a new grant program for owners of publicly owned treatment works to be used for the implementation of a pretreatment standard or effluent limitation developed pursuant to the CWA for any PFAS or pollutants identified by the EPA Administrator as a CEC.
H.R. 2467, the PFAS Action Act of 2021, would require EPA to take a number of actions under several statutes. Among these are CWA-related actions focused on ELGs, water quality criteria, and notification. Some of these actions are similar to those proposed in H.R. 3622, S. 1907, and H.R. 4224 (as discussed below). H.R. 2467 would require EPA to develop ELGs for PFAS for nine specified industrial categories no later than four years after the date of enactment.132 It would also require EPA to publish human health water quality criteria for PFAS not later than three years after the date of enactment. The bill includes an authorization of appropriations for EPA to carry out these requirements. The bill would also require the owner or operator of an industrial source of PFAS to notify the applicable treatment facility of any introduction of PFAS to that treatment works, and provide them with certain information regarding the identity, quantity, susceptibility to treatment, and potential interference of the relevant PFAS.
H.R. 3622 and S. 1907, related bills titled the Clean Water Standards for PFAS Act of 2021, would similarly require EPA to develop ELGs for PFAS for nine specified industrial categories not later than four years after the date of enactment. They would require EPA to publish human health water quality criteria for PFAS not later than two years after the date of enactment. The bills would authorize appropriations of $200 million for each of FY2022 through FY2026 for EPA to carry out these requirements.
H.R. 3701, the Protecting Infrastructure and Promoting the Economy Act (PIPE Act), would direct EPA to establish a wastewater discretionary grant program to provide competitive grants to eligible entities for certain eligible wastewater infrastructure projects. Eligible projects would include measures to reduce the discharge of PFAS into the environment through publicly owned treatment works.
H.R. 4224, the PFAS Transparency Act, would require the owner or operator of an industrial source of PFAS to notify the applicable treatment work of any introduction of PFAS to that treatment works, and provide them with certain information regarding the identity, quantity, susceptibility to treatment, and potential interference of the relevant PFAS.
S. 1507, the Plastic Pellet Free Waters Act, would require EPA to promulgate a rule to prohibit the discharge of plastic or pre-production plastic materials from facilities regulated by ELGs under the Organic Chemicals, Plastics, and Synthetic Fibers133 and Plastics Molding and Forming134 industrial categories. It would also require that the rule prohibit discharges of plastic pellets or other pre-production plastic materials from point sources that make, use, package, or transport such materials, and would require that NPDES permits and standards of performance for vessels reflect these prohibitions.
H.R. 2238 and S. 984, companion bills titled the Break Free from Plastic Pollution Act, would require certain actions to address plastic pollution and microplastics through several statutes. Among other actions, the bills would require EPA, in consultation with other agencies, to establish a grant program to fund microfiber reduction projects that either help reduce the generation of microfiber pollution or improve filtration for the removal of microfiber pollution from washing machines or wastewater treatment plants. They would also require EPA to establish a pilot program to test the efficacy and cost effectiveness of tools, technologies, and techniques to remove microplastics from the environment and prevent release into the environment. The bills would require EPA to promulgate revised ELGs, not later than three years after enactment, for the Organic Chemicals, Plastics, and Synthetic Fibers industrial category and the Petroleum Refining category135 to address specified requirements. They would also incorporate the requirements proposed in S. 1507, the Plastic Pellet Free Waters Act. In addition, they would require that no later than three years after enactment, EPA promulgate a rule to ensure that proposed CWA permits for certain facilities identified in the bill address potential environmental justice impacts.
Conclusion
While Congress is currently debating how to best address the concerns related to widespread detections of PFAS, attention to other emerging contaminants (e.g., microplastics and algal toxins) has also increased, together with the availability of new detection methods and increased monitoring. Observers note that in the coming years, other CECs will likely emerge and prompt similar calls for immediate action to protect public health and the environment. Many observers argue that federal actions to address CECs currently tend to be reactive rather than proactive. Many of these observers assert that more focus and attention is needed on assessing the toxicity of chemical substances before they are introduced into commerce. Congress is currently considering legislation to improve federal coordination and responses to CECs.Specific to the CWA, some observers advocate for oversight to identify and address potential gaps or barriers in CWA authorities and processes that make it difficult for EPA and states to quickly respond when CECs are detected. Other observers assert that EPA could better use its existing authorities to address CECs. For example, EPA has not updated its ELGs for certain industrial categories in decades. Accordingly, some observers assert that various ELGs do not reflect advancements in science or technology that could lead to new effluent limitations for CECs. Similarly, some stakeholders assert that EPA could better prioritize which CECs warrant water quality criteria development. EPA’s ability to address these and other recommendations depends on the availability of resources, treatment technologies, and scientific and economic data. Moving forward, Congress may be interested in evaluating EPA appropriations for the CWA programs that support EPA’s efforts to address discharges of CECs. Congress may also be interested in overseeing the Administration’s implementation of these programs.
Important stuff!
Enjoy!
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