Clean Water Current Archive

September 19, 2008

NACWA Testifies Before House T&I Panel on Need for Emerging Contaminants Studies

NACWA testified yesterday before the House Transportation and Infrastructure (T&I) Subcommittee on Water Resources and Environment about the need for more research into potential environmental and human health impacts of emerging contaminants.  Keith Linn, chair of NACWA’s Water Quality Committee and an environmental specialist for the Northeast Ohio Regional Sewer District in Cleveland, testified for NACWA and noted that while these compounds are called “emerging contaminants,” most have been around for a long time and only recently have been subject to scrutiny because of advances in our ability to detect them.  His testimony focused on the state of science on emerging contaminants, the major data gaps that still exist, and the increasing public and media attention this issue is receiving.  He stressed that sound science, not fear, be applied to this issue so that any regulations or water quality standards do not arise out of a public perception that a problem exists.

Linn also described what NACWA and its member agencies are doing to address the issue.  NACWA has played a leadership role in efforts to remove potentially harmful products that add little or no practical value, such as soaps and detergents containing triclosan, from the chain of commerce through its Consumer Products Dialogue; participated in discussions with EPA on permethrin-impregnated clothing and copper and silver biocides; and established a partnership with the Product Stewardship Institute to develop a comprehensive approach for managing the disposal of unused pharmaceuticals.  In addition, many NACWA members have established pharmaceutical take-back programs despite federal narcotics laws and guidelines that continue to advise certain drugs be flushed into the sewer system.  The Association distributed press releases summarizing Linn’s comments.

Also testifying at the hearing was Ben Grumbles, EPA assistant administrator for water, officials from the U.S. Geological Survey and the Maine Department of Environmental Protection (DEP), and two academics.  Members of the subcommittee questioned the witnesses about the state of science regarding the human health and environmental impacts from these contaminants and were told that more research is needed.  However, one subcommittee member suggested that enough evidence is already available that regulation may be needed to address endocrine-disrupting compounds in the near future.  NACWA will continue to work with congressional staff and EPA to ensure that emerging contaminants are addressed in a cooperative manner with the regulated community.  Witness statements from the hearing are available on the subcommittee website.

Senate EPW Approves Bills on Sewer Overflow Notification, SRF Reauthorization

The Senate Environment and Public Works (EPW) Committee approved bills Sept. 17 that would establish a sewer overflow notification program and reauthorize the Clean Water State Revolving Fund (SRF) and Drinking Water SRF.  Both bills were reported out of committee by voice vote.  The Sewage Overflow Community Right-to-Know Act (S. 2080), introduced by Sen. Frank Lautenberg (D-N.J.), chair of the Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality, would establish a national program for monitoring, reporting, and notification of sewer overflows.  The Water Infrastructure Financing Act (S. 3500) would provide $38.5 billion over five years for both SRFs.  NACWA released a Legislative Alert (LA 08-04) yesterday detailing the substance of the bills.

The version of S. 2080 approved by the EPW committee is based on legislation passed by the full House in June.  NACWA worked for several months with American Rivers and key staff from the House Transportation & Infrastructure (T&I) Committee on the House version of the bill (H.R. 2452).  However, NACWA’s Board raised concerns with the final version of the House bill, especially with the fact that the definition of sanitary sewer overflows (SSOs) would amend the Clean Water Act and potentially lead to new liability concerns.  To address this problem, NACWA sent a letter in July to the Senate EPW Committee seeking a change to this provision.  In the Senate substitute amendment, NACWA successfully ensured that the definition of SSOs was moved to a section of the bill that limits its applicability to the monitoring, notification, and reporting provisions of the bill only.

The committee approved S. 3500 in a voice vote with Sen. James Inhofe (R-Okla.), ranking member of the committee, opposing it.  The bill was amended to include the Davis-Bacon prevailing wage provisions, which Inhofe opposes, saying it adds to the cost of the projects.  NACWA and the Water Infrastructure Network (WIN) worked hard to get this legislation introduced in the Senate after it was passed by the House.  The original Senate bill contained $40 billion over five years for both SRFs — $20 billion for clean water; $15 billion for drinking water — as well as grants to small communities and $50 million for “critical water infrastructure projects,” focused on watershed restoration.  The bill also contained $2 billion in grants to address sewer overflows.  A second amendment reduced the cost of the entire bill by 2 percent, cutting overall funding to $38.5 billion.

Neither bill is expected to become law this year because they need to be reconciled with the House bills.  There is little time for that to happen because Congress expects to adjourn Sept. 26.  Moreover, President Bush promised to veto the SRF reauthorization bill when it passed the House saying it was too expensive.

NACWA Legal Call Focuses on Construction Law Issues, Nutrient Standards

NACWA held its third Late Breaking Legal Issues Call of the year Sept. 10 to discuss liability issues for publicly owned treatment works (POTWs) in construction law and the development of controversial new nutrient standards, two topics of importance for the clean water community.  Neal Sweeney, of NACWA legal affiliate Kilpatrick Stockton, led off the call with a discussion of the unique liability issues that POTWs face when using a design-build approach to major construction projects instead of the more traditional build-to-design model.  This is particularly true when dealing with liability issues related to defective design.  Participants on the call discussed a number of different legal cases dealing with liability related to defective design under a design-build approach and indentified how POTWs can best protect themselves under these kinds of contracts.  Following this discussion, Bill Hall, of NACWA Legal Affiliate Hall & Associates, informed participants about a new process of developing nutrient standards used by EPA Region III in Philadelphia that may also soon be used by other regions across the nation.  The new procedure uses questionable scientific data and analysis and ignores contradictory site-specific data.  Participants discussed the problems this new approach could pose for POTWs, as well as efforts to request that EPA submit the procedure to a peer review process.  NACWA is currently working on a letter to EPA expressing concerns with the new development process and will make it available soon to the membership as a model for additional letters from clean water utilities.  Handouts and PowerPoint presentations from the speakers on the call are available to NACWA members on the Legal section of the Association’s website under the Member Pipeline.