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The Insider

President Joe Biden’s nominee to lead EPA’s water office, Radhika Fox, appears to be heading for an easy Senate confirmation, but faces a host of tough challenges ahead. At her confirmation hearing, Fox fielded many questions on the future “waters of the United States” (WOTUS) rule that EPA is crafting to replace a Trump-era policy that narrowed which waters are subject to federal jurisdiction.

Fox took questions from Republican lawmakers at the hearing May 12 who were seeking reassurances that EPA will not return to a hotly contested, more-expansive reading of the Clean Water Act (CWA) used by the Obama administration. The nominee told lawmakers she would convene stakeholder meetings at the state and regional levels in order to craft an “enduring” definition of WOTUS that would end the cycle of each new administration scrapping its predecessor’s policies.

This appeared to satisfy most senators present, and Fox now seems to be headed for confirmation, with none threatening to vote against her or the other nominees present at the hearing -- Michal Freedhoff, nominated to head EPA’s Office of Chemical Safety and Pollution Prevention, and Shannon Estenoz, named as assistant secretary of interior for fish and wildlife and parks:

Senators Query EPA’s Fox On WOTUS But Signal Easy Confirmation
EPA water office nominee Radhika Fox reiterated her pledge to work with states and industry groups on a new “waters of the United States” (WOTUS) rule at her Senate confirmation hearing, drawing praise from Republicans who raised no objection to her confirmation even as they warned her against reviving the Obama-era water policy.

But Fox and her likely colleague Freedhoff face several controversies relating to implementation of the CWA, and also the Safe Drinking Water Act. Further, EPA is under pressure to limit the health risks of per- and polyfluoroalkyl substances (PFAS), which are common water contaminants that are notoriously difficult to destroy.

In one such dispute, state attorneys general are at odds with the Army Corps of Engineers over states’ role in CWA water quality certifications for Corps-issued permits:

States Seek Corps’ Talks To Resolve Fight Over CWA Permit Certifications
Attorneys general (AGs) from six states are urging the Army Corps of Engineers to “change course and engage with” states to solve a dispute over states’ role in issuing Clean Water Act (CWA) water quality certifications for a slew of Corps-issued dredge-and-fill general permits, saying the states and EPA have proposed possible resolutions.

At issue is the Corps’ response to states’ CWA Section 401 certification decisions related to the Corps’ reissuance of dozens of nationwide permits (NWPs) at the end of the Trump administration, which sought to speed permitting of fossil fuel energy projects. The AGs from Washington, California, Connecticut, Maryland, New Mexico, and Oregon, along with the California State Water Resources Control Board, say that the Corps’ rushed implementation of the Trump rule is undermining states’ role in certification decisions.

Meanwhile, federal appeals court judges are probing whether a dairy in Washington State is able to challenge EPA enforcement action under the Safe Drinking Water Act years after the fact:

Judges Question Dairies’ Bid To Overturn EPA SDWA Enforcement Action
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit pressed an attorney for a Washington state dairy why the company should be able to challenge an EPA Safe Drinking Water Act (SDWA) enforcement action years after the fact, asking questions including whether the suit should fail on jurisdictional grounds.

The case, Washington State Dairy Federation, et al. v. EPA, tests in part whether the law provides a statute of limitations for parties to challenge an EPA enforcement action, or whether they must rely on other statutes to set such a deadline.

The litigation stems from an administrative order on consent (AOC) that EPA entered into with several dairies, including Cow Palace in Washington’s Lower Yakima Valley in 2013, and a related EPA report on nitrate contamination in groundwater sources of drinking water in the valley.

One pressing issue facing both Fox and Freedhoff, if confirmed, is EPA’s handling of risks from PFAS, an issue senators raised at their confirmation hearing. One prominent House Democrat is pressing federal regulators to quickly adopt tougher limits for the chemicals, after a move by the Agency for Toxic Substances and Disease Registry to adopt stricter risk estimates for the substances than EPA now uses:

Dingell Seeks Tougher PFAS Limits After ATSDR Adopts Strict Risk Values
Rep. Debbie Dingell (D-MI), a leader of Capitol Hill efforts to address per- and polyfluoroalkyl substances (PFAS), is urging regulators and other federal officials to quickly adopt stricter limits on the chemicals after the Agency for Toxic Substances and Disease Registry (ATSDR) formally adopted risk values more conservative than EPA’s.

In a statement to Inside EPA on ATSDR’s recently released final risk levels, Dingell urged regulators to ensure that the Defense Department (DOD) be required to remediate PFAS contamination to levels that protect against the risks ATSDR has identified. Also, one industry attorney says EPA could also use the ATSDR risk value to aid in compelling sampling and cleanup work.

Responding to concerns over PFAS contamination in drinking water, EPA has proposed a new monitoring rule that would require utilities to collect data on PFAS and lithium levels in treated drinking water, and the proposal is receiving a mixed welcome:

Stakeholders Spar Over Scope Of PFAS Testing In EPA Drinking Water Rule
States, chemical users and manufacturers, and environmental groups are raising varied concerns over EPA’s proposed rule to require utilities to monitor for 29 per- and polyfluoroalkyl substances (PFAS) and lithium, staking opposing positions on whether the agency is correct in limiting the rule to 29 PFAS.

EPA took comment until May 10 on its proposed fifth unregulated contaminant monitoring rule (UCMR 5), which the agency will use to collect data to determine the occurrence of contaminants that it has identified as possibly needing drinking water limits due to the contaminants’ known effects on human health.

State regulators in their comments raise concerns about the need for EPA guidance on communicating to the public the significance of PFAS that are expected to be detected in the monitoring process, and they push the agency to consider including additional contaminants in the final rule.

But chemical industry groups urge EPA to keep its plan to only require monitoring for the 29 individual PFAS for which it has validated detection methods, while making it a priority to develop validated methods to address additional PFAS.

Drinking water utilities, meanwhile, offered a mixed reaction, raising concerns about aspects of the data collection efforts they say are overly burdensome, and saying a lack of health effects information for most of the chemicals may alarm the public without giving utilities the tools they need to accurately communicate risks:

Drinking Water Utilities Raise Concerns About EPA Monitoring Regulation
Drinking water utilities are providing a mixed reaction to EPA’s proposed rule to require utilities to monitor for 29 per- and polyfluoroalkyl substances (PFAS) and lithium, concurring with some of the proposal’s provisions but raising concerns about others such as data collection efforts they say are burdensome and unnecessary.