Member Pipeline - Regulatory - Alert (RA 05-02)
To: Members & Affiliates
From: National Office
Date: January 10, 2005
Subject: EPA RELEASES DRAFT WHOLE EFFLUENT TOXICITY IMPLEMENTATION GUIDANCE, AMSA TO COMMENT
Reference: RA 05-02
Printer friendly versionOn December 28, 2004, the U.S. Environmental Protection Agency (EPA or Agency) released for public comment its draft National Whole Effluent Toxicity (WET) Implementation Guidance Under the NPDES Program (Draft Guidance). A copy of the 109 page guidance can be downloaded from EPA’s website (http://www.epa.gov/npdes/permitbasics). In addition to its legal challenge to the validity of some of EPA’s WET methods [see Legal Alert 04-11, http://www.amsa-cleanwater.org/private/legal_index.cfm], AMSA has met with the Agency several times over the last few years to ensure that various key issues that are currently complicating implementation of WET testing requirements and limits in Clean Water Act permits are addressed.
EPA has provided a 60-day public comment period on the Draft Guidance that closes on February 28, 2005. AMSA will submit comments on the draft and encourages its members who currently have WET limits or WET testing requirements in their National Pollutant Discharge Elimination System (NPDES) permits to review the guidance and submit their own comments. AMSA will distribute a list of specific issues for members to address in their comments once it has finished reviewing the Draft Guidance.
Given the recent court decision, in which AMSA participated, upholding EPA’s WET methods, this Draft Guidance and AMSA’s corresponding advocacy efforts have taken on added significance. The manner in which WET monitoring requirements and permit limits are currently derived and implemented needs to be adjusted to adequately compensate for the problems associated with the WET tests themselves. While AMSA is still reviewing the Draft Guidance, an initial review reveals that the draft will not provide sufficient flexibility and clarification to alleviate these implementation problems.
Draft Guidance
EPA had intended this new guidance to provide for more national
consistency within the existing WET program and to address a number of issues
and questions that have been raised by states, regions, and stakeholders. The
Draft Guidance outlines options that states may consider to provide
flexibility within the existing regulations, such as allowing additional time
for permittees to collect more data to make the critical ‘reasonable potential’
assessment and using an enhanced approach to evaluating WET toxicity in
low-flow dilution cases. Unfortunately, the Draft Guidance is silent on
many of the issues for which AMSA and other stakeholders have been seeking
clarification and provides little relief for those situations where the tests
themselves complicate implementation. This makes AMSA and member agency comment
efforts all the more important.
Step-Wise or Tiered Approach
Over the past several years, AMSA and a number of industry organizations
have explored the concept of a step-wise or tiered approach to WET
implementation and have encouraged EPA to consider some form of it for the
national WET program. While EPA notes in the Draft Guidance that it is
using a ‘step-wise’ approach, the guidance does not go far enough. Under AMSA’s
preferred approach, permit limits would be crafted in such a way that if
toxicity were detected, certain follow-up activities, including a re-test, would
be required. Failure to conduct those follow-up activities, including any
remedial actions necessary, would constitute a violation. In this scenario, the
initial toxicity test failure alone would not constitute a WET limit violation,
except in certain instances where the toxicity was clearly evident.
While EPA’s Draft Guidance does require accelerated testing and potentially a toxicity identification evaluation/toxicity reduction evaluation (TIE/TRE) if the numeric WET limit or monitoring triggers are exceeded, the numeric limit remains the basis for compliance and the exceedance is still considered a violation. EPA makes it clear that conducting TREs or other follow-up actions does not preclude enforcement. While EPA has maintained in earlier statements and in discussions with AMSA that it encourages enforcement discretion for single WET test failures, the Draft Guidance does not reassert this policy.
EPA’s new ‘step-wise’ implementation strategy, which the Agency also applies to the reasonable potential determination and limit derivation processes, does include some new elements that may be useful. EPA will allow the monthly chronic WET limit to be expressed as a median rather than an average in “low-flow dilution” situations. This is an implicit acknowledgment that the inherent variability in WET testing can be responsible for permit violations, independent of any real toxicity. However, to take advantage of this option, three or more chronic WET tests in one month are required, and the scheduling/cost of these additional tests could be quite burdensome.
EPA is also providing for the option to delay a WET limit for up to 18 months if the permitee has limited WET data (<10) results and wants to collect more data for the reasonable potential determination.
Other Issues
AMSA continues to review the Draft Guidance, but has also identified
the following potential issues:
- Independent applicability vs. weight of evidence approach – EPA asserts that the permit limit must include appropriately derived limits to protect the use, regardless of the attainment status of the water body if warranted after the reasonable potential determination. AMSA has argued in the past that if other information, including the results of in-stream biosurvey data, demonstrates that there is no adverse effect on aquatic life use attainment, that information should also be evaluated when determining the need for a limit.
- Inconsistencies with recent WET court decisions – The Draft Guidance, which was developed on a separate track from the recent court challenge of the WET methods, contains several elements that are inconsistent with the court decision that AMSA will seek to clarify in its comments.
If you have any questions or concerns regarding this Regulatory Alert or WET implementation issues, contact Chris Hornback, AMSA’s Director of Regulatory Affairs at 202/833-9106 or chornback@amsa-cleanwater.org. Again, AMSA will be distributing a more specific list of issues soon to gather needed information for the comment effort. Also, WET implementation and legal issues will be a focus of committee discussions at AMSA’s Winter Conference, February 1-4, in San Antonio and it is not too late to join us. Visit http://www.amsa-cleanwater.org/meetings/05winter/ for registration information.