June 2016, Vol. 71 No. 6

Washington Watch

Flint-Inspired Water Infrastructure Bill Takes First Step Forward

A Senate committee passed a bill authorizing a new $100 million fund for cities like Flint, MI, which have drinking water emergencies on April 29. The bill also fully funds $70 million (i.e. no separate appropriation is needed) for the Environmental Protection Agency’s (EPA) Water Infrastructure Finance and Innovation Act (WIFIA) program, created in 2015 by Congress as a supplement to the Clean Water and Drinking Water State Revolving Funds (DWSRF). The WIFIA has not had the funds to issue any loans in its first two years of existence. The Obama Administration proposed a $20 million appropriation for fiscal 2017.

The Flint amendment to the Senate Environment and Public Works’ Water Resource Development Act (WRDA) is meant to provide a new pot of money for cities and counties who find, like Flint, that they have lead problems with drinking water piping. There is a universal agreement that existing lead service lines pose a health danger nationally, especially to vulnerable children, and that the financial resources available for cities to remedy that problem are clearly insufficient. A recent study conducted by the American Water Works Association estimates there are 6.1 million lead service lines utilized nationwide serving 15 to 22 million Americans. USA Today has reported that nearly 2,000 water systems across all 50 states have exceeded the EPA’s lead action level within the past four years.

The House Transportation and Infrastructure Committee is expected to pass its own version of a WRDA. But Justin Harclerode, the spokesman there, could not say whether it would include a Flint amendment.

Currently, states and cities could use DWSRF loans to address lead problems. But the magnitude of deteriorating water pipe infrastructure greatly exceeds the ability of the DWSRF to fund pipe repair and replacement. hence the need for an additional source of funds. The WIFIA funding, if Congress follows the lead of the Senate committee, will only be available for large projects in metropolitan areas.

President Obama proposed an increase for the DWSRF in fiscal 2017 to $1.02 billon; it received $863.2 million in fiscal 2016. But the CWSRF would be severely cut to $979.5 million. House Democrats introduced the Assistance Quality and Affordability Act on Feb. 29, which would increase funding for the drinking water SRF to $3.13 billion in fiscal 2017 and increase it 15 percent annually over the next four years. That bill has no chance of passage.

Federal funding is one issue; federal oversight of local water system safety is another. The federal law regulating local supervision of drinking water pipes has not been updated in 13 years, and won’t be until at least 2017. It is called the lead and copper rule (LCR), and is administered by the EPA under the Safe Drinking Water Act. Under the LCR, all large water systems (serving more than 50,000 people) must treat their water to optimize corrosion control, or demonstrate they don’t need to do so because their water isn’t corrosive and they have no lead problems.

At hearings in the House Energy and Commerce Committee, both Republicans and Democrats pressed Joel Beauvais, deputy assistant administrator for the Office of Water, EPA, on why the agency was taking so long to make changes to the LCR via a proposed rule. “We certainly have a sense of urgency about the revisions and we also want to make sure that we get them right,” he said.

He noted that the agency’s forward progress had slowed because the recommendations on LCR revisions made by the National Drinking Water Advisory Council came prior to the Flint incident. Those recommendations need to be updated. “I think stakeholders’ understanding of where we need to go on this has evolved somewhat. So, we are working hard on that and we are going to get it done as quickly as we can,” he added.

Currently, the LCR does not require localities to replace lead pipes. Beauvais was asked whether he thinks the EPA will propose replacement. “I do,” he answered.

That was music to ears of Mae Wu, senior attorney in the Health and Environment Program at the Natural Resources Defense Council (NRDC). She also serves on the EPA’s National Drinking Water Advisory Council.

“It is critical that the revised LCR contain an enforceable requirement to fully replace lead service lines on a strict timeline,” she stated. “It is also critical that the service lines be replaced fully; that is, replacement of the service line up to the customers’ home or residential building, including on the homeowner’s property.”

The American Water Works Association (AWWA) supports complete removal of lead service lines across the country.

Pipeline Safety Bill Heads For House Passage; Senate Bill Waiting

Two House committees passed nearly identical pipeline safety bills. Once they combine into a single piece of legislation the House will work with the Senate, which previously passed a bill, to come up with a single version for President Obama’s signature.

All three bills pale beside the 2011 pipeline bill which contained many new regulatory ma ndates for the Pipeline and Hazardous Materials Safety Administration (PHMSA), a significant number of which have not been completed. In this new batch of bills, there are only two significant provisions. One in the two House bills gives PHMSA “emergency order” authority to close down a pipeline in the event of a significant leak. All three require PHMSA to establish a regulatory program to prevent leaks from underground gas storage facilities.

The House bills were passed in late April by the House Energy & Commerce Committee (H.R. 5050) and the Transportation and Infrastructure Committee (H.R. 4937). Once they are joined together, they will be conferenced with the Senate’s S. 2276 which passed on March 3.

The Senate bill does not include an emergency order provision. Brianna Puccini, spokeswoman for Sen. Deb Fischer, R-NE, chairman of the Senate Surface Transportation subcommittee and sponsor of the Senate’s SAFE PIPES Act, declined to comment on whether Fischer supports emergency order authority for the PHMSA. Puccini says, “Senator Fischer looks forward to addressing the pipeline safety bill in the Senate as it continues through the legislative process.”

The House bills allow PHMSA to impose “emergency restrictions, prohibitions, and safety measures by issuing an emergency order . . . without prior notice or an opportunity for a hearing, but only to the extent necessary to abate the imminent hazard.” Other federal regulatory agencies have this authority; PHMSA never has had it. Before issuing such an order, PHMSA would have to consider its impact on the national or regional economy or national security and the owners and operators of pipeline facilities. Companies could file a petition for review which, if not answered by the agency within 30 days, would mean the order was nullified. The order could also be appealed in federal district court. An imminent hazard is defined as a substantial likelihood that death, serious illness or severe personal injury may occur or a substantial endangerment to health, property or the environment.

This provision, in a more draconian fashion, was proposed in the Transportation Committee bill, where the Interstate Natural Gas Association of America (INGAA) initially opposed it. Rep. Jeff Denham, R-CA, chairman of the Railroad, Pipelines and Hazardous Materials subcommittee, eventually rewrote the provision almost to INGAA’s satisfaction.

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