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To:

Members & Affiliates

From:

National Office

Date:

April 2000

The National Office is pleased to provide you with the April 2000 Regulatory Update. This Update provides an overview of relevant regulatory issues current to April 10, 2000. A narrative summary of activities or actions that have occurred during the past month is provided in this cover, while attached is a Regulatory Digest summary of all regulatory activities that are currently being tracked by AMSA.

AMSA Submits Comments on Round II Biosolids Rule
On March 23, AMSA submitted its comments on EPA's proposed dioxin standards for the use or disposal of sewage sludge (i.e., biosolids). AMSA commended the Agency for proposing a rule that addresses the issue of dioxin, dibenzofurans and dioxin-like coplanar PCBs in biosolids, however, did not find adequate technical justification for EPA's proposed 300 ppt TEQ/dry kg cap for biosolids land application. AMSA recommended that the Agency be consistent with the methodologies used to develop the limitations for metals in Round I of the regulations. Using the Round I methodology and correcting errors in EPA's risk analysis, AMSA recommended a cap of 800 ppt TEQ for the final rule. AMSA's contractor, Cambridge Environmental, completed a comprehensive and thorough analysis of the EPA proposal and supporting risk analysis, which was submitted as part of AMSA's comments. A complete set of AMSA comments can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/outreach.cfm.

Inspector General Concludes That Biosolids Program Does Not Ensure Compliance
On March 20, 2000, EPA's Office of Inspector General released an audit report, “Biosolids Management and Enforcement” (Report Number 2000-P-10) which concluded that EPA does not have an effective program for ensuring compliance with the land application requirements of Part 503. While the audit did not review the science and risk assessments related to Part 503, the Inspector General found that EPA could not “assure the public that current land application practices are protective of public health.” The report found that of the 3,700 POTWs that must annually report to EPA Regions on biosolids quality, “EPA reviewed only about 38 percent.” Additionally, the Inspector General found that EPA performs few biosolids related inspections of POTW operations, virtually no inspections of land application sites, and does not maintain data on cumulative amounts of pollutants at land application sites. The IG suggests that the low priority given to biosolids management by EPA's Office of Water and EPA's Office of Enforcement and Compliance Assurance may result in increased risks to the environment and human health, and cause a loss of public confidence in the biosolids program. The report recommends that the Assistant Administrators of the offices of Water and Enforcement “provide, by the end of fiscal 2001, an analysis of whether the agency's proposed actions provide sufficient basis for assessing compliance with Part 503 and assuring the public of the protectiveness of land application practices.” The complete IG report will be transmitted the membership via Regulatory Alert 00-09.

USDA Prohibits Biosolids Use for Organic Foods in Newly Proposed Program
In a recent proposal by the U.S. Department of Agriculture (USDA), the use of sewage sludge, genetic engineering, and irradiation in the production of food products labeled “organic” will be prohibited. On March 13, 2000, the USDA published in the Federal Register a new proposal for uniform and consistent national standards for organic food. The proposal offers a national definition for the term “organic.” Currently, organic food is certified by various private and state organizations that each use their own standards for the term “organic.” The proposal details the methods, practices, and substances that can be used in producing and handling organic crops and livestock, as well as processed products. The proposal also prohibits antibiotics in organic livestock production and requires 100 percent organic feed for organic livestock. USDA received more than 275,000 comments on its initial December 1997 organic program proposal. On March 23, 1998, AMSA submitted comments supporting the use of biosolids as a safe, nutrient-rich soil amendment in organic farming, and questioned USDA's justification for excluding highly regulated biosolids, while allowing the use of untreated and unregulated animal manures. USDA is requesting comments on the new proposal by June 23, 2000. Fact sheets and other background materials on the proposed organic rule can be accessed on the web at www.ams.usda.gov/nop.

EPA Outlines Changes to Proposed TMDL Regulation
In an April 5 letter to House and Senate committee chairmen with jurisdiction over environmental issues, EPA outlined key elements of its expected final total maximum daily load (TMDL) regulations. Based upon EPA's final rule summary attached to the letter, EPA indicates that it will:

  • provide for a comprehensive listing of all the Nation's polluted waters;
  • assure that all sources of pollution to a waterbody are considered;
  • call for an implementation plan that identifies specific pollution controls for a waterbody;
  • allow States 4 years to develop lists of polluted waters;
  • allow States to develop TMDLs over a period of up to 15 years;
  • drop the requirement that polluted water lists include “threatened” waters;
  • drop the proposed requirement that States give top priority to addressing drinking water
  • sources and waters affecting endangered species;
  • drop the proposal to provide a public petition process for review of lists;
  • drop proposals to require offsets before new pollution can be discharged to polluted waters prior to the development of a TMDL;
  • clarify that Clean Water Act permits will not be required for diffuse runoff from forestry operations, and;
  • support more cost-effective development of TMDLs by more specifically encouraging States to develop TMDLs on a watershed scale.

Most of the changes EPA has outlined are consistent with AMSA's recommendations in the TMDL proposal. A copy of the letter and final rule summary has been distributed to the membership via Regulatory Alert 00-08. EPA hopes that the final rule will be issued by the end of June, however, the rule is currently under intense Congressional scrutiny which may delay its issuance. Over the past few months, the TMDL rules have been subject to several House and Senate Subcommittee hearings, and Congressional leaders have noted the lack of adequate water quality data and cost information to support the rule and its implementation.

GAO Report Concludes EPA Lacks Information to Determine Water Quality
On March 23, the U.S Government Accounting Office (GAO) released a report requested by the Chairman of the House Water Resources and Environment Subcommittee assessing the adequacy of information in EPA's National Water Quality Inventory and the sufficiency of data used to make key decisions regarding Clean Water Act programs, such as total maximum daily load (TMDL) listing and development. GAO's assessment found that EPA's National Water Quality Inventory, also known as the 305(b) report, does not accurately portray water quality conditions nationwide. GAO cited that while it would be cost-prohibitive to physically monitor all of the waters in the country, states do not monitor in a way that allows for statistically valid assessments of water quality. In addition, only six states reported having a majority of the data needed to fully assess all of their waters, and less than half the states have a majority of the data needed to determine if their waters that have been assessed should be placed on their TMDL list of waters that do not meet standards. Most problematic, according to the report, is the states ability to identify nonpoint sources of pollution and develop TMDLs for waters polluted primarily by nonpoint sources. Copies of the report can be found at http://www.gao.gov (GAO/RCED-00-54).

EPA Finalizes Rule to Eliminate April 2000 TMDL Listing
On March 31, EPA published a final rule in the Federal Register revising one provision of the Total Maximum Daily Load (TMDL) regulations to remove the regulatory requirement that states, territories, and authorized tribes submit to EPA by April 1, 2000 lists of water quality limited waters, unless EPA has been required by a court order, consent decree, or settlement agreement to take action based on a year-2000 list. The rule only affects the April 1, 2000 list; it retains the existing regulatory requirement that lists be submitted on April 1, 2002, and on April 1 of subsequent even numbered years. While the rule does not require submittal of impaired waters lists from most states, some states are moving ahead with developing the lists this year, despite elimination of the EPA requirement. AMSA members are advised to check with their state to determine whether a 303(d) list is being prepared and the timeframe for list development (some of the states reported moving ahead with 2000 lists include, Georgia, South Carolina, Utah, Minnesota, Texas, and Pennsylvania).

Agency Extends Comment Deadline for Draft Bacteria Guidance
As reported in the March 2000 Regulatory Update, EPA's Office of Science and Technology transmitted a “Draft Implementation Guidance for Ambient Water Quality Criteria for Bacteria — 1986” to state water quality managers for their review. The draft guidance was developed to assist States in implementing EPA's recommended water quality criteria for bacteria. While EPA was originally seeking comment from states and other interests by March 15, it has extended the comment deadline to May 15. AMSA's Water Quality Committee is reviewing the document, and is planning to submit comments by the end of April.

AMSA Workgroup Developing Alternative Approach for Nutrient Criteria
AMSA's Nutrients Workgroup continues to develop an alternative approach to address scientific uncertainties associated with criteria development under EPA's June 1998 National Strategy for the Development of Regional Nutrient Criteria. AMSA remains concerned that EPA's approach to developing criteria for nutrients will produce nutrient criteria which are not adequately linked to aquatic life or other beneficial uses. EPA was expected to release two draft nutrient criteria technical guidance documents for public comment in February/March 2000, however, these guidance (one for lakes/reservoirs, the other for rivers/streams), have yet to be released.

While awaiting the formal release of these guidance documents, AMSA's Nutrients Workgroup is currently developing a flow chart for use in state decision-making during nutrient criteria development and promulgation. The flowchart is expected to link the development of the criteria to the review of the target use of a waterbody, and include an analyses to insure that the any level of reductions needed to meet the target use is cost effective. EPA has relied on the use of an empirical approach to develop total nitrogen (TN) and total phosphorus (TP) criteria by selecting a percentile in the frequency distribution of TN and TP concentrations from waterbodies of a similar ecological region and class regardless of an established relationship between nutrients and algal biomass or biological health. In AMSA's draft alternative approach the resulting criteria would be more directly tied to impairments that are being protected (i.e. response variables such as: dissolved oxygen, chlorophyll, incidence of algal blooms, periphyton growth, measured biological criteria). AMSA plans to continue its discussions and promote alternative approaches with EPA as it moves forward with criteria development.

EPA is still expected to publish 17 target criteria ranges for nutrients this summer. Eight of these target criteria ranges will be published for lakes/reservoirs, and another eight for rivers/streams. Each of the criteria ranges will represent one ecoregion delineation (e.g., South Central Cultivated Plains, Xeric West, etc.). One target nutrient criteria range will be published for wetlands (Florida Everglades). These target ranges are envisioned as guidelines for states in developing their own nutrient criteria. EPA will be requesting additional data or information to supplement proposed target ranges later this summer.

EPA plans to convene a public stakeholder meeting concerning nutrient criteria development on May 25 in Washington, DC. Details of the meeting will be forwarded to the AMSA Nutrient Workgroup once they are made available. AMSA's Nutrient Workgroup plans to meet with EPA officials in late-May or early June to discuss alternative criteria development approaches.

Also, on April 5, 2000, the National Research Council of the National Academies released a report on nutrient pollution of the Nation's coasts. The NAS report noted that the overabundance of nutrients, especially nitrogen, is causing environmental damage on all of the nation's coasts. The report studies the impacts of the introduction of excess nutrients into coastal systems. A full copy of the report can be found at: http://www.nap.edu/books/0309069483.cfml.

EPA Announces New Storm Water Permit
Eight of EPA's regional offices (Regions 1,2,3,4,6,8,9,10) are proposing to re-issue the multi-sector storm water general permit associated with industrial activity under the Clean Water Act National Pollution Discharge Elimination System (NPDES). The current general permit, first issued on September 29, l995 and which expires on September 29, 2000, controls storm water discharges where EPA is the permitting authority. The proposed permit will control storm water discharges from 29 sectors of industrial activity (including POTWs). EPA is requesting public comment for 60-days. Copies of the proposed permit and additional information of the storm water program are available at http://www.epa.gov/owm.

AMSA Meets with Office of Management and Budget on SSO Regulations
On March 16, AMSA and representatives from the National League of Cities and WEF, met with Office of Management and Budget officials to discuss EPA's forthcoming regulations addressing sanitary sewer overflows. OMB officials were particularly concerned with the potential cost implications of the rule, and emphasized the lack of data defining the problem. AMSA emphasized the need to include adequate liability protection for unavoidable overflows in the final rule. An additional meeting with OMB has been scheduled for April 12. EPA transmitted the proposed rule to OMB in late-March. OMB has 90-days to review the EPA's proposal.

With this schedule, EPA is on track for proposing the rule by early to mid-summer and has indicated that it is committed to proposing regulations that reflect the approach the SSO Federal Advisory Subcommittee members supported at its October 1999 meeting in Williamsburg, Virginia. AMSA does have some preliminary concerns regarding the NPDES-only approach for municipal satellite systems (municipally-owned collection systems that discharge into larger regional collection and treatment systems). While the preamble of the proposal has not been made available, it is also unclear how proposed rule will address regulatory controls for peak excess flow treatment facilities (wet weather facilities) and the planning of SSO controls in a watershed context.

AMSA Re-Petitions Agency to Update Great Lakes Wildlife Criteria for Mercury
On April 3, AMSA re-petitioned the EPA to revise the Great Lakes Water Quality Guidance mercury wildlife criterion AMSA had originally petitioned the Agency to revise the criterion in May 1999, however, the petition was subsequently denied by EPA in December 1999. Upon review of EPA's December 8, 1999 denial letter, AMSA's Mercury Workgroup found insufficient basis for the denial. AMSA is requesting that the wildlife criterion be changed based upon a finding in EPA's own Mercury Study Report to Congress, which states that an interspecies uncertainty factor of greater than one is “unjustified” (the Great Lakes avian wildlife criterion uses an interspecies uncertainty factor of three).

EPA does not believe the change is necessary because the resultant wildlife values in the Mercury Study Report to Congress (MSRC) and the Great Lakes Guidance are very similar. However, AMSA argues that one reason the mercury criterion in the MSRC are similar to the Great Lakes Guidance is because higher bioaccumulation factors used in the MSRC are based on field data outside the Great Lakes. These values could not be used in the derivation of the Great Lakes criterion. EPA also argues that it “... does not believe that it would be appropriate to derive revised Great Lakes Guidance values by solely revising a single component of the methodology to the exclusion of other important factors.” AMSA points out in its April 3 petition letter that EPA's own December 10, 1998 republication of the National Recommended Water Quality Criteria states: “In addition to developing new criteria, and conducting major reassessments of existing criteria, EPA also from time to time recalculates criteria based on new information pertaining to individual components of the criteria.” (63 Fed. Reg. 68354, 68355). As an alternative to modifying the criterion, AMSA also suggests an alternative approach whereby EPA could issue separate guidance to the states stating that the derivation of a mercury wildlife criterion using an interspecies uncertainty factor of one will be deemed “as protective” as the criterion contained in the Guidance.

EPA Removes Duplicative 40 CFR 431 Regulation for Paper and Board Mills
On March 21, EPA announced in the Federal Register removal of the duplicative 40 CFR Part 431 regulation for paper and board mills. Since April 15, 1998, facilities formerly covered under the 40 CFR Part 431 regulation have been regulated under the Secondary Fiber Non-Deink Subcategory (Subpart J) of the pulp, paper and paperboard production source category (40 CFR Part 430). On April 15, 1998, EPA promulgated effluent limitations guidelines and standards, under the Clean Water Act (CWA), for a portion of the pulp, paper and paperboard industry. EPA also promulgated national emission standards for hazardous air pollutants (NESHAP) under the Clean Air Act (CAA) as amended in 1990, for the pulp and paper production source category. In that rulemaking, known as the Cluster Rules, EPA reorganized 26 subcategories (formerly found in parts 430 and 431) into 12 new subcategories. In reorganizing the subcategories, mills formerly in the Builders' Paper and Board Mills Point Source Category (part 431) were placed under the Secondary Fiber Non-Deink Subcategory (part 430, subpart J). EPA did not make any substantive changes to the limitations and standards applicable to mills in this subcategory in the April 15, 1998 rule, but simply reprinted in their entirety the current effluent limitations guidelines and standards applicable to these mills.

AMSA Cites Concerns with EPA Performance Track Program
The Environmental Protection Agency is proposing a national program to recognize and encourage facilities that achieve better environmental performance than is required under existing regulations. EPA announced its intention to develop a Performance Track program in its report, Aiming for Excellence, that was issued in July of 1999. It is now developing the specific elements of that program, with the goal of soliciting initial applications for its first level in June of 2000. EPA views this program as a way to build upon and integrate a range of innovative programs that have been underway for some time, at both the federal and state level. EPA hopes to draw on its experience with its own programs (such as StarTrack, the Environmental Leadership Program, Project XL, and the Common Sense Initiative) and on those of states that have developed similar programs (such as New Jersey, Oregon, Wisconsin, Colorado, and Michigan). Two public meetings to gather input on the draft program were held in Washington, D.C. on March 15 and 21, 2000. During the public meetings AMSA cited concerns with the program's lack of adequate incentives for participation and overlap with other environmental management system (EMS) initiatives and awards programs. Additional information can be found at http://www.epa.gov/reinvent/performancetrack/.

Attachments:

  • AMSA Meetings Schedule
  • Regulatory Digest
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