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Regulatory Alert - RA 05-06 -

Member Pipeline - Regulatory - Alert (RA 05-06)

To: Members & Affiliates, Water Quality Committee
From: National Office
Date: July 15, 2005
Subject: WHITE PAPER ON WHOLE EFFLUENT TOXICITY REQUIREMENTS
Reference: RA 05-06

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Action Please By:
July 29, 2005

The National Association of Clean Water Agencies (NACWA) through its Water Quality Committee is working on a white paper regarding Whole Effluent Toxicity (WET) permit requirements. This initiative is being undertaken in the wake of the December 10, 2004, ruling by the U.S. Court of Appeals for the District of Columbia in the Edison Electric Institute case (http://www.nacwa.org/private/littrack/2004-12-10DCCirOp.pdf) upholding the U.S. Environmental Protection Agency’s (EPA or the Agency) WET test methods. Despite the outcome, the appeals court decision contains language that is helpful to the Association’s effort to improve the implementation of WET testing requirements. NACWA is collecting information from its members on both problematic and beneficial aspects of the WET program. This information, coupled with some of the court’s language, will help NACWA ensure that its white paper will offer useful guidance on implementing the WET testing program and provide sample permit language to assist the nation’s publicly owned treatment works (POTWs) in implementing the requirements of the program. This white paper will also help guard against the inappropriate use of WET data.

This project constitutes the logical next step in NACWA’s advocacy effort on EPA’s WET program. In late December, the Agency published draft guidance to foster national consistency in the WET program, restate the need to comply with WET regulations, and reemphasize existing guidance, policy, and regulations on the program. In comments submitted March 31, NACWA expressed concern with a number of issues in the Agency’s draft guidance including that it was too restrictive and would not allow the use of alternative, defensible approaches (http://www.nacwa.org/advocacy/comments/2005-03-31AMSACmtsOW-2004-0037.pdf). NACWA also said EPA did not employ a “step-wise” approach that would use confirmatory testing and toxicity investigation as the ‘limit’ in lieu of numeric limits, except when necessary. Providing the types of information discussed below will aid the continued effort to ensure sound WET program implementation.

NACWA Requests WET Permit Language
NACWA is interested in examining current permit language and state procedures that govern WET requirements, including monitoring, reasonable potential determinations, limit derivation, compliance determination and Toxicity Identification Evaluations and Toxicity Reduction Evaluations (TIE/TRE). Of particular interest are elements designed to address technical concerns, such as averaging provisions, triggers for accelerated testing, “offramps” for TIE/TRE, and compliance monitoring and schedules for removing WET limits.

Please submit copies of the relevant parts of your permit along with any program documentation and your contact information by July 29, 2005, to Chris Hornback, NACWA Director of Regulatory Affairs, via email at chornback@nacwa.org or fax at 202/833-4657.

Additional Information
Specifically, NACWA is requesting that members provide copies of the relevant permit language or state procedures pertaining to the following items, though it welcomes any WET-related permit information. Members are welcome to simply send a copy of their entire permit:

The white paper will examine all aspects of the WET testing program and will provide sample permit language and guidance on implementing WET permit requirements.

The sample permit language and guidance contained in the white paper will likely focus on, but not be limited to, the four broad categories of RP determinations, compliance monitoring with numeric limits, TIE/TRE requirements, and reporting requirements. Sample language will address compliance schedules for new numeric limits and conditions for removing those limits before they take effect; triggers for accelerated testing, especially when a permit limit is exceeded; and what constitutes a violation. Additional sample permit language will address RP determination issues such as frequency of testing; endpoint uncertainty – an issue that the court addressed; species, endpoints, test type and duration; and triggers for accelerated testing to address marginal toxicity.