Water Quality Issues
EPA's Water Quality Standards Regulation Revision Process
- Advanced Notice of Proposed Rulemaking
Background: EPA is seeking through an advance notice of proposed rulemaking (ANPRM), views and recommendations on possible revisions to the Water Quality Standards regulation. The purpose of the ANPRM is to serve as a regulatory planning tool to identify areas within the Water Quality Standards Regulation in need of revision, explain perceived problems, and describe a range of options for revisions/additions to the regulation. EPA released a draft ANPRM in mid-March 1996 to all interested parties for comment over a two month period ending in early May 1996. After months of stakeholder debate in early 1997, AMSA received a letter dated June 5, 1997 from Assistant Administrator, Bob Perciasepe, which expressed EPA's decision to "proceed with development of a narrower ANPRM" than what was originally proposed in March 1996.
Status: EPA outlined the scope of a narrowed advanced notice of proposed rulemaking (ANPRM) for the Water Quality Standards regulation at a recent AMSA leadership meeting on September 29-30, 1997. Program and regulatory changes to be raised in the narrowed ANPRM include: discussions of designated uses; biological criteria; physical and habitat criteria; toxicity criteria; sediment criteria; microbiological criteria; antidegradation; and general policies, such as mixing zones, and independent application. Publication of the ANPRM is planned for January 1998. CONTACTS: Rob Wood, EPA 202/260-9536 or Mark Hoeke, AMSA 202/ 833-9106.
AMSA Represented on National Water Quality Monitoring Council
Background: The National Water Quality Council was formed on recommendation by the Intergovernmental Task Force on Monitoring Water Quality (ITFM), a highly successful multi-year cooperative effort involving federal and state agencies and the private sector. ITFM's final report, "The Strategy for Improving Water-Quality Monitoring in the United States," recommends a strategy for nationwide water quality monitoring and technical monitoring improvements to support sound water quality decision making at all levels of government and in the private sector. The National Water Quality Council, which is composed of federal, state, municipal, and tribal government, environmental, manufacturing, and agricultural interest groups, as well as volunteer monitoring groups is intended to fulfill these recommendations and will review activities for monitoring the quality of fresh surface water, estuary and near-coastal water, ground water, and precipitation at local, regional, and national levels. The National Council will also provide guidance for the collection, management, and use of water-quality information. This information is needed to assess status and trends, to identify and prioritize existing and emerging problems, to develop and implement management and regulatory programs and to evaluate compliance with environmental requirements and the effectiveness of programs and projects. The council reports to the Federal Advisory Committee on Water Information. Sam Hadeed, AMSA's Director of Regulatory Affairs and Technical Services, will serve as the AMSA representative on the FACA committee.
Status: Representing AMSA on the newly created National Water Quality Monitoring Council for a four-year term is Norman LeBlanc, chief of technical services of the Hampton Roads Sanitation District and chair of AMSA's Water Quality Committee. The Council's next meeting is scheduled for January 27-28, 1998 in Washington, DC. The next meeting of the FACA on Water Information will be February 16-17, 1998 in Washington, DC. CONTACT: Elizabeth Fellows, EPA 202/260-7062, or Mark Hoeke, AMSA 202/833-9106.
Streamlining 301(h) Waiver Renewal Requirements - Anticipated
Proposed Rule
Background: EPA is proposing to amend the Clean Water Act section 301(h) regulations. This proposal is designed to streamline the renewal process for POTWs with 301(h) modified permits. Section 301(h) provides POTWs discharging to marine waters an opportunity to obtain a modification of secondary treatment requirements if they demonstrate to EPA that they comply with a number of criteria aimed at protecting the marine environment.
Status: Proposal is planned for April 1998. CONTACT:
Deborah Lebow 2606419
Endangered Species Act Consultation - Draft Memorandum of
Agreement Among EPA, FWS, NMFS
Background: On August 4, 1997 EPA distributed a final review draft of an agreement between EPA, the Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS), which defines the role of each agency in ensuring Clean Water Act programs are consistent with Endangered Species Act (ESA) requirements. Section 7 of the ESA requires Federal agencies to consult with FWS or NMFS when taking an action which may adversely impact endangered or threatened species. EPA has described the current consultation process as "random" and hopes to make the process more consistent and clearer for each of the agencies involved. The process described in the Agreement sets up a timely schedule for elevating unresolved consultation issues between the agencies when an action which may affect listed or endangered species is being taken. In addition to the Agreement, a draft biological opinion from FWS and NMFS was also circulated for comment. The opinion is intended to address Section 7 consultation requirements for EPA approval of state NPDES programs and state water quality standards. The opinion concludes that "EPA's approval of the assumption of permitting authority by the States...under Sections 402, 404, and 405 of the CWA and EPA's approval of water quality standards under Section 303 (c) of the CWA and permitted activities conducted in accordance with properly implemented Federal and State regulatory programs are not likely to jeopardize the continued existence of listed or proposed species, and are not likely to result in the destruction or adverse modification of designated or proposed critical habitats." However, the draft opinion also stipulates that EPA will propose a national rulemaking which prohibits mixing zones and variances that would likely affect listed or proposed species. In addition, states would be required to adopt site-specific water quality criteria where determined to be necessary to avoid a likely jeopardy situation.
Status: EPA hopes to finalize the agreement by the end of January 1998. AMSA met with EPA officials on November 14 to discuss the impact of the agreement on NPDES permitting activities and water quality standards setting. EPA believes that the agreement will ease the current difficulties in state delegation of programs, mainly Section 404 programs, and believes it will not impose additional requirements for states currently implementing permitting programs. EPA indicated that it is willing to accept informal comment on the memorandum. AMSA plans to submit a letter to EPA expressing its concerns with the Memorandum in January 1998. CONTACT: Mark Hoeke, AMSA 202/833-9106 or James Pendergast, EPA 202/260-9545.
Freshwater Ammonia Criteria Revisions
Background: Since EPA published its water quality criteria document for ammonia in freshwater, (Ambient Water Quality Criteria for Ammonia - 1984, U.S. EPA 1985a), it has issued additional information concerning aquatic life criteria for ammonia (Heber and Ballentine, 1992; U.S. EPA 1989, 1996) and there have been various studies of ammonia toxicity that could affect the freshwater criterion. The purpose of EPA's current efforts is to update U.S. EPA (1985a) and replace Heber and Ballentine (1992) and U.S. EPA (1996) by addressing various issues and assessing new data to the extent possible in a short-term effort. This short-term effort is addressing issues and data related to the Criterion Maximum Concentration (CMC), Criterion Continuous Concentration (CCC), and CCC averaging period, or the frequency of allowed exceedences. It is intended that a separate long-term effort will more completely evaluate relevant laboratory and field data, identify and conduct needed research, and replace U.S. EPA (1985a) and this latest addendum in five to ten years. A recently issued draft addendum updates the equations used in the ammonia criteria document (U.S. EPA 1985a) to address the temperature- and ph-dependence of ammonia toxicity in freshwater to take into account newer data and better approaches. A new CMC is derived based on these updated equations. Available chronic data is evaluated and used to derive a new CCC.
Status: EPA's Office of Science and Technology is in the process of updating its freshwater ammonia criteria to account for newer data, better approaches, and to address temperature and ph-dependence of ammonia toxicity. The updated procedures are reflected in a draft addendum to EPA's "Ambient Water Quality Criteria for Ammonia - 1984." A technical peer review has been completed on the draft document. EPA plans to solicit public comment via Federal Register notice in January 1998. AMSA's Water Quality Committee will review the draft document when published. CONTACT: Mark Hoeke, AMSA at 202/833-9106, or Charles Delos, EPA 202/260-7039.
Whole Effluent Toxicity
Background: On February 19, 1997 EPA released their draft whole effluent toxicity (WET) implementation strategy (distributed via Regulatory Alert RA 97-6). 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. Comments from numerous member agencies were compiled and transmitted to EPA prior to the April 30, 1997 deadline. In February 1996, EPA was sued by several groups, including the Western Coalition of Arid States (WESTCAS), and the Edison Electric Institute on the WET test procedures, which were promulgated on October 16, 1995. AMSA's Board of Directors did not pursue litigation on WET based on the opportunity to resolve technical and policy issues with EPA.
Status: EPA is continuing negotiations with litigants regarding WET issues. On July 21, 1997, a policy memorandum from EPA Office of Science and Technology Director, Tudor Davies, and EPA Office of Wastewater Management Director, Michael Cook to Regional Water Management and Environmental Services Division Directors concerning additional clarifications for Whole Effluent Toxicity (WET) methods and implementation in permits. The memorandum specifies: 1) The Agency has not established nationally applicable criteria for WET, for either acute or chronic toxicity under CWA 304(a); 2) The Agency does not mandate which test methods NPDES permitting authorities must use, however, any method used must be approved; 3) Permitting authorities should consider biological assessment, and other relevant data when available, in determining whether the discharge will cause, or have reasonable potential to cause or contribute to a violation of a State water quality standard; 4) Permitting authorities may use different toxicity limitations for seasonal flow differences, however, emphasizes that increased monitoring frequencies are needed when permits contain seasonal limits; 5) Emphasizes that permit decisions should utilize the most representative data in "reasonable potential" analyses, including data which shows lower levels of toxicity attributable to a discernable control action (resulting from a TIE/TRE) and which will be maintained.
AMSA forwarded a letter to EPA on July 31, 1997, summarizing the highlights of a June 23-24 stakeholder meeting on WET issues, and urging EPA to eliminate enforceable WET tests as permit limits and to adopt an alternative approach discussed by municipal representatives. In the letter, addressed to Mike Cook, Director of EPA's Office of Wastewater Management, AMSA summarizes the three key points which were discussed at the meeting regarding §122.44(d)(ii) determinations and also summarizes six types of data and information which were discussed for inclusion in §122.44(d)(ii) determinations. The full text of the letter was forwarded to AMSA's membership via Regulatory Alert, RA 97-18. Pending resolution of ongoing litigation, EPA hopes to finalize the WET Implementation Strategy sometime in early 1998. CONTACT: Sam Hadeed, AMSA 202/833-4655.
Magnuson Act Provisions; Essential Fish Habitat - Proposed
Rule
Background: The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA) and the Department of Commerce issued in the April 23, 1997, Federal Register, proposed regulations containing guidelines for the description and identification of essential fish habitat (EFH) in fishery management plans (FMPs), adverse impacts on EFH, and actions to conserve and enhance EFH. The regulations would also provide a process for NMFS to coordinate and consult with Federal and state agencies on activities that may adversely affect EFH. The guidelines are required by the MagnusonStevens Fishery Conservation and Management Act (MagnusonStevens Act). The purpose of the rule is to assist Fishery Management Councils in fulfilling the requirements set forth by the Act to amend their FMPs to describe and identify EFH, minimize adverse effects on EFH, and identify other actions to conserve and enhance EFH. The coordination and consultation provisions would specify procedures for adequate consultation with NMFS on activities that may adversely affect EFH. AMSA's Water Quality Committee prepared and submitted comments on the proposal on June 6. AMSA members had several significant concerns regarding the scope of the regulations, particularly its impact on non-fishing activities and Federal action agencies.
Status: On December 19, 1997, the NMFS published an interim final rule and request for comments on its essential fish habitat provisions of the Magnuson-Stevens Act. The regulations are effective on January 20, 1998, however NMFS is interested in receiving any additional comments prior to issuing a final rule. NMFS is particularly interested in receiving comments on those sections of the interim final rule that have been changed in response to comments and any new information not previously submitted. AMSA members will receive a copy of the interim final rule via an upcoming Regulatory Alert. Based upon member input, AMSA may submit additional comments to NMFS. CONTACT: Lee Crockett, NMFS 301/7132325 or Mark Hoeke, AMSA 202/833-9106.
EPA Revising Approach to Method Quantitation Levels
Background: In March 1994, EPA released a draft policy, titled "National Guidance for the Permitting, Monitoring, and Enforcement of Water Quality-based Effluent Limitations Set Below Analytical Detection/Quantification Levels." The guidance proposed a methodology to assign a compliance level at 3.18 times the method detection limit (MDL) for a given pollutant, called the minimum level (ML). The methodology has been criticized by industry groups due to concerns that the methodology yields inconsistent results and inequality in compliance decisions. AMSA submitted its own concerns in a letter dated August 12, 1996 to EPA which discussed Interlaboratory vs. Intralaboratory MDLs/MLs; ML Definition; and, State Flexibility.
Status: EPA has formally dropped plans to use a multiple of the MDL as the method to derive the ML for assessing compliance at analytical levels below detection. EPA plans to formulate a new approach based on statistical procedures in early 1998. CONTACT: Bill Telliard, EPA at 202/260-7134.
EPA to Release Mercury Strategy in January 1998
Background: EPA is expected to outline its key action items to reduce public exposure to mercury in a plan to be released in mid-January. The plan will highlight actions to reduce mercury discharges from all media, and will accompany the release of a report on emission control strategies for electric utilities on January 15. The mercury reduction plan will also address one aspect of the Vice President's Oct. 18 Clean Water Initiatives calling on EPA to "reduce the need for fish consumption advisories." EPA has cited mercury as one of the leading causes of fish advisories. A key component of the plan of concern to AMSA is the accelerated development of a revised national water quality criterion for mercury that incorporates new risk assessment data, and uses a revised approach to determine mercury criterion based on human health. This revised approach uses a bioaccumulation factor (BAF), which was used in the development of mercury criterion in the Great Lakes basin and incorporates assumptions on biomagnification of mercury in the food chain. The BAF approach, along with the revised risk assessment data, is expected to reduce the national mercury criterion by a factor of 100. (The Great Lakes human health criterion for mercury is 1.8 ng/l.) In addition to a new criterion for mercury, EPA plans to revise its required analytical method "to be more sensitive (below the new criterion level) and less subject to false positives through contamination." The revised method is expected to be finalized in late 1998. Though the plan acknowledges the relatively small mercury contribution made by direct water discharges when compared to input from air deposition, it does stress the effect that more stringent water quality criterion will have on discharge permits for municipalities. The plan indicates that when discharges are contributing to exceedences of water quality standards, corrective actions taken will most likely be pollution prevention to find and control sources of mercury into the wastewater, rather than end-of-pipe treatment. The plan does not discuss what actions will be taken when source control efforts fail to bring required reductions in mercury discharges. EPA adds that it will "provide information to sewage treatment works nationwide on voluntary initiatives to reduce mercury releases, development of required pollutant minimization programs, State and/or Federal compliance assistance efforts, and development of Supplemental Environmental Projects in enforcement actions." The plan follows EPA's December 19, 1998 submittal of its Mercury Study Report to Congress (required under Clean Air Act §112(n)(1)(B)), which evaluated health and environmental effects of mercury emissions from electric utility steam generating units, municipal waste combustion units, and other sources, including area sources.
Status: AMSA members will receive a copy of the plan via a Regulatory Alert when it is issued. A review of the plan and its implications will be led by AMSA's Water Quality Committee. CONTACT: Arnold Kuzmack, EPA 202/260-5821 or Mark Hoeke, AMSA 202/833-9106.
EPA Publishes Report to Congress on Contaminated Sediment
Background: In January 1998, U.S. EPA released its Report to Congress on contaminated sediments. The report, titled The Incidence and Severity of Sediment Contamination in Surface Waters of the United States , is the first comprehensive EPA analysis of existing sediment chemistry and related biological data to assess the national incidence and severity of sediment contamination. The report was prepared in conjunction with the National Oceanic and Atmospheric Administration (NOAA), the Army Corps of Engineers, and other federal, state, and local agencies. Data from 1980 to 1993 were used in preparing the report. The report is based upon existing data. It identifies 96 watersheds that contain areas of probable concern. EPA used a tiering approach to rank sediment monitoring locations into one of three levels: 1) tier 1 where adverse effects are probable, 2) tier 2 where adverse effects are possible, but expected infrequently, and 3) no indication of associated adverse effects. EPA then classified watersheds as areas of probable concern if they contained 10 or more Tier 1 stations and at least 75% of all sampling stations were categorized as Tier 1 or Tier 2. As a result of the study, EPA is recommending that states proceed with further evaluations of the 96 watersheds contained areas of probable concern, and that evaluations should focus on: 1) collecting and analyzing additional sediment chemistry and related biological data, 2) further evaluating the potential for human health and ecological risk, and 3) identifying potential sources of contaminants, and determine whether potential sources are adequately controlled. In addition, EPA has identified four goals to guide future efforts to manage contaminated sediment, including: 1) prevent the volume of contaminated sediment from increasing; 2) reduce the volume of existing contaminated sediment; 3) ensure that sediment dredging and dredged material disposal are managed in an environmentally sound manner; and, 4) develop scientifically sound sediment management methods. EPA plans to finalized a strategy over the next three months to help the nation achieve these goals. Copies of the 3-volume report: The Incidence and Severity of Sediment Contamination in Surface Waters of the United States are available from the U.S. EPA National Center for Environmental Publications and Information at 1-800-490-9198.