AMSA Legislative Update September 2002

This edition of AMSA’s Legislative Update, current through October 4, 2002, provides a summary of recent congressional activities that affect the nation’s publicly-owned treatment works (POTWs). For more detailed information regarding AMSA activities related to specific legislation, click on the web links at the end of selected news items, or contact AMSA’s Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org.

AMSA members can track congressional action on individual bills through AMSA’s Bill Tracker. The Tracker provides a direct link from AMSA’s web site to congressional web sites where bill texts and summaries are posted, allowing members to research relevant federal legislation. The site also includes the status and most recent action taken on all federal legislation through a link to the Library of Congress’ “Thomas” web site. To increase the value of this essential resource, the Bill Tracker is routinely updated on the AMSA web site. To bookmark the Bill Tracker, go to http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm.

Clean Water Funding

Bipartisan Displeasure Halts Senate Bill
An effort in mid-September to move the Water Investment Act of 2002 (S. 1961) onto the Senate calendar by Senate Environment and Public Works (EPW) Committee Chair James Jeffords (I-VT) and the democratic majority was met with resistance from both sides of the aisle. At least 11 Senators have placed a hold on S. 1961 to prevent it from moving forward. The $41.5 billion, five-year bill would amend the funding provisions of the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA), end federal funding after five years, and place extensive new administrative burdens on loan applicants. As amended, S. 1961 also requires that a municipality in “significant noncompliance” with the CWA must enter into “an enforceable administrative or judicial order” in order to become eligible to submit an application for a loan from the state revolving fund (SRF). The two biggest issues for Senators who have placed holds on the bill are the allocation formula that determines the amount of funds each state receives and the requirement that workers on SRF-funded projects receive local prevailing wages under the Davis-Bacon law.

In response to issues outlined in a July 2002 letter to the Senate signed jointly by AMSA and other municipal organizations, the National Governor’s Association, and state water and wastewater administrators, Senator George Voinovich (R-OH) says he will keep his hold on the bill until those issues are resolved. With negligible support for S. 1961, and little hope of compromise on the funding formula and Davis Bacon issues, prospects for additional action in the Senate are unlikely this year.

S. 1961 and the accompanying written report No. 107-228 (with minority views) can be found on AMSA's Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm. A copy of the letter to the Senate can be found at: http://www.amsa-cleanwater.org/private/legreg/outreach/071202letter.pdf.

Ranking Member Loses in Republican Primary
Republican Senator Robert C. Smith (R-NH), Ranking Member of the Senate Environment and Public Works (EPW) Committee, lost his September 10 primary battle to Rep. John Sununu (R-NH) in a hotly contested race in New Hampshire. Smith’s loss sets the stage for Sen. James Inhofe (R-OK) to take over the top Republican spot on the panel, provided he wins his reelection bid this November. Although Sen. John Warner (R-VA) is second in seniority to Smith, he is unlikely to give up his status as ranking Republican on the Senate Armed Services Committee to assume the EPW post. Inhofe has drawn criticism from the League of Conservation Voters and the activist community, yet has strong support from the U.S. Chamber of Commerce for his positions on environmental and infrastructure issues. Committee assignments for the 108th Congress will be made in early 2004.

House Floor Vote on H.R. 3930 Unlikely
Nearly 100 House members have now signed on to become cosponsors of the Water Quality Financing Act of 2002 (H.R. 3930). Even with the large number of cosponsors, chances are remote that the bill will move to the House floor. Although urged by Democrats in a July 8 letter to allow key legislation to move to the floor despite a dispute over prevailing wage provisions (the Davis-Bacon Act), the House leadership is unlikely to schedule a vote on the measure. The letter stated that H.R. 3930, which would authorize $20 billion over the next five years for the clean water SRF, “would create hundreds of thousands of family wage jobs and make major improvements in our Nation’s quality of life.” The letter is at http://www.win-water.org/Armey-HSR07-08.pdf.

AMSA member agencies that want to thank their Representatives for cosponsoring H.R. 3930 can view the list of cosponsors by going to the AMSA Bill Tracker and clicking on H.R. 3930. If you want to ask your Member to become a supporter of clean water infrastructure funding by cosponsoring H.R. 3930, you can find a sample letter at http://www.amsa-cleanwater.org/private/faxalerts/032602.cfm.

Water and Wastewater Security

Wastewater Security Bill Remains a House Priority
The House Transportation and Infrastructure (T&I) Committee remains committed to moving a bill this year that would help wastewater treatment agencies defray the cost of new security measures. The Wastewater Treatment Works Security Act of 2002 (H.R. 5169), cosponsored by House T&I Committee Chair Don Young (R-AK), Ranking Member James Oberstar (D-MN), Water Resources Subcommittee Chair John J. Duncan (R-TN), and the Subcommittee’s Ranking Member Peter DeFazio (D-OR), was introduced and unanimously passed out of the T&I Committee in late July. Committee staff continue to review options to move the bill to the House floor during the limited number of days remaining in the 107th Congress.

H.R. 5169 authorizes $200 million for POTWs to conduct vulnerability assessments and to pay for enhanced security at their facilities. An additional $15 million is authorized to provide technical assistance to small POTWs. The bill also authorizes $1 million for each of the fiscal years 2003 through 2007 to EPA for grants to a nonprofit organization for the improvement of vulnerability self-assessment methodologies and tools for POTWs. This could potentially help AMSA’s effort to upgrade its Vulnerability Self Assessment Tool (VSAT™) software over the coming years. Passage of authorizing legislation, however, is only half of the equation. If a security bill is enacted and signed by the President this year, appropriators will have to find the money in a tight budget to fund the new wastewater security program.

For more information, read AMSA’s Legislative Alert 02-06 in the Member Pipeline section of AMSA’s web site at: http://www.amsa-cleanwater.org/private/legreg/legalrts/la02-06.cfm.
A copy of H.R. 5169 is available for printing or downloading on AMSA’s Bill Tracker at: http://www.amsa-cleanwater.org/private/legreg/legupdate/leg_tracker.cfm#9.

New Mandates Likely in Senate Security Bill
AMSA continues to work closely with Senate staff toward the successful introduction and passage of wastewater security funding legislation in the Senate. Following numerous meetings and briefings between AMSA members and EPW Committee staff, an early draft of the Senate bill proved to be nearly identical to the drinking water section of The Bioterrorism Act of 2001 (H.R. 3448). The draft Senate bill gives EPA's Administrator authority to determine which treatment works are required to perform and submit written vulnerability assessments and emergency response plans.

The draft bill authorizes $125 million for fiscal year 2003 to perform vulnerability assessments, emergency response plans and basic security enhancements; $25 million for fiscal years 2003 and 2004 to address immediate and urgent security needs as determined by the EPA Administrator; $15 million for fiscal year 2003 for treatment works that serve a population of under 10,000 people; $15 million annually for fiscal years 2003-2007 for EPA research on the vulnerabilities of wastewater treatment works to intentional acts; and $200,000 for fiscal years 2003-2007 for non-profit agencies to develop and upgrade vulnerability self-assessment software, which may help fund improvements to, and training on, AMSA's VSAT™ software tool. Senate staff say they hope to introduce and pass a bill this year.

Chemical Security Bill Draws Fire from Republicans
Although the Senate EPW Committee unanimously approved the Chemical Security Act of 2002 (S. 1602), committee Republicans are now vowing to keep the measure from becoming an amendment to homeland defense legislation. The Republicans do not want to kill the bill, but want to amend the measure in accordance with a promise made by sponsor Sen. Jon Corzine (D-NJ) that he would negotiate several controversial provisions prior to floor action. Negotiations apparently have broken down in spite of broad, general support to somehow address chemical security.

The bill would affect approximately 15,000 industrial plants that manufacture, store or use toxic chemicals and that are subject to Clean Air Act (CAA) 112(r) risk management planning requirements. Among other things, S. 1602 would require EPA and the Office of Homeland Security to develop regulations to determine high-priority facilities and guide the preparation of security vulnerability assessments and response plans. Affected facilities would have to take steps to substitute highly toxic substances with less hazardous ones and implement inherently safer technologies. A companion bill (H.R. 5300) was introduced in the House this summer but has not been scheduled for hearings or markup. Only a handful of AMSA member agencies have responded to the AMSA National Office that they have facilities that are covered by CAA 112(r). If you have not responded but are covered by CAA 112(r), please contact Lee Garrigan at 202/833-4655 or lgarrigan@amsa-cleanwater.org.

Budget and Appropriations

EPA Spending Bill in House Limbo
House action on environment and energy-related appropriations bills have been stalled by a reported budget dispute over fiscal year (FY) 2003 funding legislation for Labor, Health, Human Services and Education. Action may be further delayed as Congress focuses on keeping the government running while trying to wrap-up business and go home for the November general election. A second short-term continuing resolution through October 11, 2002 was expected to easily pass this week. A mark-up of EPA’s budget in the VA-HUD & Independent Agencies funding bill is tentatively scheduled for October 8. It is hoped that the full Appropriations Committee will pass the bill the same day as the Subcommittee.

The Senate Appropriations Committee approved its version of EPA’s FY 2003 budget as part of the VA-HUD & Independent Agencies appropriations bill (S. 2797) in July. Lawmakers boosted funding for EPA’s overall budget by $680 million over the Bush administration’s request. The SRF accounts were increased by $100 million over current year spending and by $240 million over the Bush proposal. The panel approved $1.4 billion for the CWSRF and $875 million for the Drinking Water SRF (DWSRF). The Bush administration in February proposed only $1.212 billion for the CWSRF and $850 million for the DWSRF as part of its message to lawmakers to cut back on ‘earmarks’ in the VA-HUD appropriations bill. Disregarding this request, Senators added $140 million to the budget for 150 special needs infrastructure grants.

In other budget areas, Senate appropriators supported the administration’s request of $20 million in FY 2003 to address drinking water system security needs. Senators also added $10 million to the President’s original request of $10 million for small system arsenic removal research and demonstration projects. For the second year in a row, the Committee did not include funding for the National Biosolids Partnership (see related story below). To review funding levels for EPA programs and the list of individual water and wastewater projects in the Committee Report (No. 107-222), go to AMSA’s Bill Tracker and click on S. 2797.

Funds for National Biosolids Partnership in Jeopardy
AMSA’s requested $1.5 million to fund the activities of the National Biosolids Partnership (NBP) for fiscal year (FY) 2003 has not been included in the Senate Appropriations Committee bill that will finance EPA programs in fiscal year 2003. The Senate Appropriations Subcommittee on VA-HUD & Independent Agencies did not include, for a second consecutive year, appropriations for the NBP. Earlier in the year, AMSA members were asked to write to their Senators to request that the NBP funding be included in EPA’s budget for FY 2003. There is still time to contact your Senators and express support for NBP funding before the bill is taken to the Senate floor for a vote. A copy of the original memorandum to AMSA members can be found on the AMSA web site at http://www.amsa-cleanwater.org/private/leg_outreach.cfm. Members should then click on the March 27 correspondence “Selected AMSA Members asked to Contact Senate Appropriators on NBP Funding.” AMSA also has sent to House and Senate appropriators copies of the NBP resolution signed by AMSA’s members at the Winter Conference in February 2002. To view or download a copy of the resolution, go to: http://www.amsa-cleanwater.org/private/legreg/outreach/02-06-02nbpletter.pdf on AMSA’s web site.

Water Quality

Senate Approves Bill to Ban Mercury Thermometers
The Senate voted unanimously in September to pass S. 351, the “Mercury Reduction and Disposal Act of 2002.” The bill phases out mercury thermometers, directs EPA to establish a national mercury thermometer collection and exchange program, and creates a Federal task force to make recommendations regarding the long-term management of surplus mercury. AMSA had suggested to the bill’s sponsor, Senator Susan Collins (R-ME), that the purpose of the proposed task force be expanded beyond surplus mercury to include a national strategy to deal with all aspects of mercury pollution. While the bill was not amended to include the expanded task force, AMSA was recognized as a supporter of the legislation in a news release issued by the Senate EPW Committee announcing the bill’s passage out of committee. Although there is no companion legislation in the House, S. 351 has been referred to the House Subcommittee on Environment and Hazardous Materials. Go to AMSA’s Bill Tracker to read a copy of S. 351.

Clean Water Act Bills to Amend Definitions
Bills introduced this past summer in the Senate and House to amend the definition of what constitutes “waters of the United States” for purposes of jurisdiction under the CWA have not been taken up in committee. The bills, S. 2780 and H.R. 5194, were introduced in response to the U.S. Supreme Court’s January 2001 decision in Solid Waste Agency of Northern Cook County (SWANCC) vs U.S. Army Corps of Engineers (USACOE). By a 5 to 4 majority, the court limited the authority of Federal agencies to use the co-called migratory bird rule as the basis for asserting CWA jurisdiction over non-navigable, intrastate, isolated wetlands, streams, ponds, and other waterbodies.

The decision means that the EPA and USACOE can no longer enforce the CWA mechanisms to protect a waterway solely on the basis that it is used as habitat for migratory birds. According to Senator Russ Feingold (D-WI), sponsor of S. 2780, the proposed legislation does three things. First, it adopts a statutory definition of “waters of the U.S.” based on a longstanding definition of waters in the USACOE regulations. Second, it deletes the term “navigable” from the Act to clarify that Congress’ primary concern in 1971 was to protect the nation’s waters from pollution, not just to sustain navigability. Finally, the bill includes a set of findings that explain the factual basis for Congress to assert its constitutional authority over water and wetlands, including those that are called isolated, on all relevant Constitutional grounds, including the Commerce Clause, the Property Clause, the Treaty Clause and the Necessary and Proper Clause.

While further action on the bills is unlikely this year, they may be reintroduced next year in the 108th Congress. The bills have the potential to extend federal CWA regulatory jurisdiction to waters not presently interpreted as being within the federal government’s authority, such as cooling water and treatment ponds. Copies of the House (H.R. 5194) and Senate (S. 2780) versions of the Clean Water Authority Restoration Act of 2002 can be found on AMSA’s Bill Tracker.

Bill Echoes U.S. PIRG Report Misinformation
Legislation introduced in July by Rep. Frank Pallone (D-NJ) mirrors exactly the findings of an August report by the U.S. PIRG. The Clean Water Enforcement and Compliance Improvement Act of 2002 (H.R.5079) amends the enforcement provisions of the CWA; revises State pollutant discharge permit program requirements concerning program approval, inspection, monitoring, introduction of pollutants into POTWs, poor compliance histories, submission of pollution prevention plans, and reporting; restricts the duration of permits that modify effluent limitations for toxic pollutants to two years and requires a hearing concerning owner-operator control and reasonable progress; authorizes citizen suits for past violations of effluent standards or limitations if there is evidence of repeated violations; and includes new protections for whistleblowers. Although the legislation is not expected to get a public hearing in the House T&I Committee, AMSA will track its progress, as it is likely that the activist community will press Congressman Pallone to reintroduce the measure next year.

In responding to PIRG in an August 14 letter, AMSA admonished the organization for misleading the public with false findings in its report, Permit to Pollute: How the Government's Lax Enforcement of the Clean Water Act Is Poisoning our Waters. AMSA’s letter indicated that the report mischaracterizes POTWs as polluters of the environment and takes great liberties with its definitions of "violations" that qualify as "significant" noncompliance, including minor paperwork and administrative matters. AMSA strongly urged PIRG, whose mission it is to defend the public interest, to do so by dealing fairly with the nation's public servants who protect their community's environment and public health. A copy of the letter to PIRG can be found on AMSA’s website in the Member Pipeline section at: http://www.amsa-cleanwater.org/private/faxalerts/08-16-02b.pdf.