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Action Please By: March 21, 1997

To: Members & Subscribers
From:National Office
Date:March 4, 1997
Re:RA 97-6

EPA's Draft Wet Implementation Strategy

EPA recently released their draft whole effluent toxicity (WET) implementation strategy (see Enclosure 1). The strategy was developed in response to the findings and recommendations from the September 1995 Society of Environmental Toxicology and Chemistry (SETAC) WET Pellston Workshop, the September 1996 WET Stakeholders Implementation Meeting, and recommendations of EPA staff. The strategy is part of EPA's commitment to make "mid-course" corrections to the existing program that the Agency believes is scientifically sound. Also attached is Enclosure 2, a matrix between the draft WET Implementation Strategy and the summaries from the September 1996 WET sessions, and Enclosure 3, a copy of the draft summaries from the breakout sessions from this meeting.

The draft strategy highlights five key areas of concern; four areas based on the recommendations from the SETAC Workshop and one area focussing on EPA research. The five areas include: 1) National WET Outreach and Training Program; 2) Continue to encourage the development of water quality criteria & standards based on good science; 3) Write better NPDES permits for WET; 4) Enforcement; and, 5) Fund research needs. EPA is seeking comment on these five areas and their proposals to address each issue:

(1) National Wet Outreach And Training Program

Due to decreased funding, staff turnover, and insufficient training, the WET program is not currently being implemented consistently throughout the nation. EPA proposes the following options to address this issue:

  • Continue funding to the SETAC Foundation to form independent Toxicity Expert Panels.
  • Continue supporting the national WET training program to provide training on WET.
  • Include the topic of NPDES permit enforcement as an element of EPA NPDES permit writers and WET training courses.

(2) Continue to Encourage The Development of Water Quality Criteria & Standards Based on Good Science

The need exists to match the sensitivity of toxicity criteria with the gradation of aquatic life use designation the criteria are intended to protect. EPA proposes the following options to address this issue:

  • Provide national guidance recommending that the permitting authorities implement appropriate designated beneficial uses and where possible site-specific criteria.
  • Begin to reevaluate the safety margins used for establishing WET requirements to increase the confidence in the limits developed to predict receiving stream impacts.
  • Develop methodologies to support the development of site-specific toxicity criteria.
  • Provide additional guidance, technical transfer and/or resources to regulators for developing use attainability analyses (UAAs).
  • Develop guidance and/or regulatory language to address the appropriate and necessary elements that comprise a narrative WET standard so that is may be easily translated and implemented into the NPDES permitting program.
  • Use the existing mechanism of the Advanced Notice of Proposed Rulemaking (ANPRM) to evaluate the policy of independent application (IA).

(3) Write Better Npdes Permits for Wet

NPDES permits need to be written clearly and in a way that: the best available WET data is used to establish limitations; collection of WET data is required prior to permit reissuance; and, sufficient data is collected to make the "reasonable potential (RP)" determination. EPA proposes the following options to address the RP issue:

  • Re-emphasize that permitting authorities use the 1990 EPA document, "Technical Support Document for Water Quality-based Toxics Control (TSD)."
  • Re-define and clarify RP to characterize the effluent toxicity more completely, including considerations of both effluent and analytic variability during permit development.
  • Implement a "step-wise approach" to permitting which would standardize a practice of collecting sufficient, high quality WET data before or during the NPDES permit development process.
  • Include monitoring requirements in the NPDES permit which provide for adequate chemical screening to determine the toxic potential of known or suspect chemical constituents, and compare to recent WET data to assess the potential for WET impacts.
  • Develop WET permit limits to accurately reflect the designated beneficial uses for the receiving water system.
  • Recommend permitting authorities provide more detailed information to the permittee on requirements within the fact sheets and the permit.
  • Include in the development of the "step-wise permitting approach" a requirement for a monitoring trigger when a limits is exceeded.

EPA proposes the following options to address issues other than RP issues:

  • Provide additional guidance to stakeholders through Office Director memos regarding appropriate interpretation of EPA test methods.
  • Provide guidance to stakeholders on the appropriate examination of effluent flow and monitoring data in order to establish a realistic link of exposure assumptions to permit development.
  • Provide detailed guidance to stakeholders regarding necessary elements when developing a toxicity monitoring requirement or limit.
  • Develop a national workgroup to investigate the issue of proper use and prevention of toxic effects to the waters of the U.S. for registered chemicals used for agricultural, industrial or other public use and re-emphasize that the chemical producers and commercial users of registered chemicals are accountable for toxic impacts to the waters of the U.S. for these same chemicals.
  • Investigate the approaches to accounting for test method variability in deriving the permit limit or determining the need for a limit.
  • Re-emphasize through guidance the difference between what constitutes an NPDES permit limit requirement and what is a monitoring requirement.
  • Stress the importance of the discharge monitoring report (DMR) language which requires permittees to report effluent data "to the best of their knowledge" and clarify or explain the differences between test method accuracy and reporting accuracy.

(4) Enforcement

Many of the members of the regulated community and some permitting authorities do not seem to be aware of the current EPA enforcement guidance and policy in the area of WET. EPA proposes the following options to address this issue:

  • Incorporate the information on EPA's policy and guidance on WET enforcement and include it in Agency training courses and outreach efforts.
  • Provide on-line access to the permitting authorities and the regulated community on available information, guidance, and policies concerning the WET program.

Many stakeholders questioned whether it is appropriate for a single exceedance of a WET requirement to be considered a violation and subject to enforcement action. EPA proposes the following options to address this issue:

  • Reiterate current EPA guidance and policies that any violation of an NPDES permit is a violation of the CWA for which the owner or operator is strictly liable and for which EPA recommends a timely and appropriate enforcement response. The nature of the response varies depending on the facts surrounding the violation.

Stakeholders asked whether permittees that are involved in an inconclusive TRE are entitle to technical assistance and enforcement relief. EPA proposes the following options to address this issue:

  • Re-emphasize EPA's 1989 WET permitting and enforcement strategy with states that in the unusual cases where permittee has implemented an exhaustive TRE, applied appropriate influent and effluent controls, and maintained continued compliance with all other permit requirements but is still unable to identify and control the cause of toxicity in order to achieve compliance, special technical evaluation may be warranted and civil penalty relief granted.
  • Provide technical assistance to permitting authorities and the regulated community via the SETAC Foundation's panel of national experts on various technical areas.

(5) Fund Research Needs

While EPA acknowledges that all the research recommended from the Pellston Workshop would be beneficial to all concerned, the Agency proposes to focus its research in those areas that support the implementation of the WET program. EPA proposes the following options to address this issue:

  • Initiate studies to evaluate improvements for the statistical analysis of toxicity test data.
  • Investigate ways to develop test precision criteria to limit test variability.
  • Develop requirements for the evaluation of new test methods.
  • Continue evaluating the feasibility of a more integrated bioassessment program, including the use of biological assessments, WET test results, and chemical analysis in a weight-of-evidence decision-making process to assess receiving system impacts caused by effluents.
  • Develop a methodology for development of site-specific toxicity criteria.

The National Office encourages member agencies to comment on these five issues and their proposed solutions. Please also make recommendations on anything that should be added. The National Office is particularly interested in gauging member feelings regarding the agency's tentative decision to address the issue of independent applicability wholly within the context of the advanced notice of proposed rulemaking (ANPRM) to revise the water quality standards regulation. AMSA has long supported the "weight of evidence" approach, and the National Office is concerned that review of independent applicability under the ANPRM will put us on a slower track than if it were addressed within the context of WET implementation.

Comments on this strategy are due to EPA by March 31, 1997. To meet this deadline, AMSA's National Office must receive your comments no later than March 21, 1997. Comments can be faxed to 202/ 833-4657, mailed or e-mailed to amsa @clark.net. Comments more than two pages should include a WordPerfect formatted IBM-compatible diskette. If you have any questions, please call Sam Hadeed, AMSA at 202/ 833-4655.


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