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September 11, 1998
EPA to Consider Clean Air Act Model in TMDL Program
Recognizing the difficulties of imposing current prohibitions on new discharges into impaired waterbodies, the U.S. Environmental Protection Agency (EPA) is considering allowing new discharges into these waters if they meet one of three criteria modeled after restrictions on new air sources in nonattainment areas under the Clean Air Act (CAA). In a conference call with AMSA’s Total Maximum Daily Load (TMDL) working group this week, Geoff Grubbs, director of EPA’s Assessment and Watershed Protection Division, highlighted this and other key issues from EPA’s evolving revisions to the TMDL regulations, which are likely to be proposed in early 1999.
Under the current regulations at 40 CFR Part 122.4(i), no permit may be issued "to a new source or a new discharger proposing to discharge into a water segment which does not meet applicable water quality standards (i.e., a 303(d)(1) listed waterbody)." Discharges may be allowed once a TMDL has been developed and the new source is given a portion of the allocated load. During the time period between 303(d)(1) listing and development of a TMDL, however, new sources are effectively prohibited. Implementation of these regulatory provisions has been varied in the past, but EPA’s TMDL Federal Advisory Committee recently recommended that states and EPA fully implement the prohibition on new sources. They also recommended, however, that optional "watershed stabilization plans" could be developed that may allow for exceptions to this restriction.
Grubbs indicated that EPA will not be moving forward with the advisory committee’s recommendations on this issue. Instead, the Agency will be modeling the proposed TMDL regulations after CAA Section 173, which discusses how new source permits may be issued in nonattainment areas (areas where ambient air quality does not meet federal standards). Using this model, the TMDL proposal will allow new sources and discharge permits (including permits for currently unregulated sources; i.e., stormwater) on impaired waters under three circumstances: 1) the facility does not discharge the pollutant causing the impairment; or 2) a TMDL has been completed and the new source has been allocated a portion of the allowable loading; or 3) the discharger will comply with the "lowest achievable emission rate," and sufficient offsetting emission reductions have been obtained, such that there is net progress towards water quality standards attainment.
"Pollutant" Versus "Pollution"
The advisory committee also raised legal questions over whether TMDLs are required for all types of "pollution," or only for the discharge of "pollutants." The term "pollution" is a much broader term as it includes impairments such as degraded habitat, flow-related use impairments, and biological impairment due to unknown sources. The Clean Water Act section 303(d)(1)(c ) requires TMDLs only for "specific pollutants suitable for such calculation (i.e., those with established criteria)." Grubbs indicated that EPA’s TMDL proposal will require states to develop their 303(d)(1) lists based on "pollution" impairments, thereby creating a comprehensive listing of impaired waters with states. But EPA will only require that TMDLs be developed for those waters where there is impairment due to "pollutants" with established criteria.
Reliable and Credible Data
EPA is also crafting regulatory language that would require states to develop a standard process for classifying waterbody impairment. The proposed regulations will require that states develop and submit a plan to EPA that includes quality assurance/quality control procedures for monitoring data, public participation, and methods for including/excluding monitoring data in certain circumstances (e.g., quality assurance concerns, age, spatial representation) during the TMDL listing and development process. EPA has requested AMSA’s input in the crafting of this language. AMSA’s TMDL working group is currently drafting a comprehensive letter to EPA highlighting major AMSA concerns.
Yesterday, U.S. PIRG released their "Report on Toxic Releases into America’s Waterways." AMSA is currently reviewing the report, which is available at http://www.pirg.org.