While the last session of Congress was one of the least productive in history, the EPA has been busy. It’s hard to estimate the potential impact of a framework, advance notice, or evaluation compared to a regulation. Thus, some of the following may result in a regulation; others may not.
Cybersecurity: no regulation but additional data breaches could cause Congress to act. A number of cybersecurity bills were introduced last year after high-profile data breaches, but debates over whether legislation should be more prescriptive or regulatory in nature kept Congress from approving anything.
In the meantime, February 2013’s Executive Order 13636 (“Improving Critical Infrastructure Cybersecurity”) required EPA (and other federal agencies) to decide whether authority and/or regulations beyond the National Institute of Standards and Technology’s (NIST) voluntary Cybersecurity Framework Version 1.0 are necessary.
The verdict: not now. The American Water Works Association’s (AWWA) “Process Control System Security Guidance for the Water Sector” and free tool for adopting the framework are adequate.
However, the agency reserves the right to revisit the issue, so the potential for cybersecurity regulation remains.
Definition of “waters of the U.S.” under the Clean Water Act. On April 21, 2014, EPA and the Army Corps of Engineers proposed language to minimize case-specific analyses of specific waters by codifying the definition of “waters of the U.S.” The result of three U.S. Supreme Court cases, the rulemaking was intended to provide predictability and consistency but instead generated a lot of questions.
The final definition is likely to be released in late 2015 or in 2016, but what it will look like isn’t clear. AWWA’s “Understanding the Proposed Definition of Waters of the U.S.” graphically presents potential impacts to water and wastewater systems.
Proposed ambient water quality criteria for the protection of human health. In May 2014, EPA released Updated National Recommended Water Quality Criteria for the Protection of Human Health that revised the default body weight assumption to 80 kg (from 70 kg) and the default drinking water rate to 3 liters/day (from 2 liters/day).
While more relevant to Clean Water Act activities, the increases could impact Safe Drinking Water Act (SDWA) regulations.
Hydraulic fracturing. Also in May 2014, EPA released an advance notice of proposed rulemaking on hydraulic fracturing chemicals and mixtures. It’s the first step in a long-term process of soliciting information on how the agency might use regulations (under Sections 8(a) and/or 8(d) of the Toxic Substances Control Act) or nonregulatory approaches (voluntary and/or use third-party certification) for reporting chemicals and mixtures used in hydraulic fracturing.
In early June, as required by August 2013’s Executive Order 13650 (Improving Chemical Facility Safety and Security), the Chemical Facility Safety and Security Working Group recommended requiring water and wastewater systems to follow the U.S. Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (CFATS), from which they’re currently exempt; and that they use more “inherently safer technology,” such as substituting hypochlorite for gaseous chlorine.
It’s not clear if, when, or how the recommendations might be implemented, but either change would require new legislation from Congress.