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Member Pipeline - Regulatory - Update (February 2001)

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To: Members & Affiliates
From: National Office
Date: February 2001

The National Office is pleased to provide you with the February 2001 Regulatory Update. This Update provides an overview of relevant regulatory issues current to March 7, 2001. 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 Board Approves Technical Action Funds for Critical Projects
On February 2, AMSA’s Board of Directors approved $140,000 in Technical Action Fund (TAF) funds for four projects receiving priority attention from AMSA’s Special Committees. Established in 1995, AMSA’s TAF strengthens the Association’s capability to implement its short and long-term regulatory and legislative objectives. The TAF provides dedicated funds to gather and analyze data, initiate litigation, and secure the services of expert consultants to compliment the activities of the National Office. It is expected that the four projects recently approved will help advance AMSA’s goals regarding the regulation or potential regulation of: 1) dioxin in biosolids, 2) radionuclides in biosolids, 3) sanitary sewer collection systems (proposed sanitary sewer overflow rule), and 4) indirect dischargers covered under the national pretreatment program (proposed metal products and machinery effluent guidelines). For detailed information concerning these projects refer to the relevant articles in this Regulatory Update or Regulatory Digest.

 

AMSA Outlines Regulatory Priorities for Administrator Whitman
On February 22, AMSA sent EPA Administrator Whitman a letter outlining the Association’s regulatory priorities. The Regulatory Priorities list was developed by AMSA’s Regulatory Policy Committee at AMSA’s recent winter conference in San Diego. The Regulatory Priorities list highlights three issues in particular for priority attention, including infrastructure funding, TMDLs, and the proposed SSO rule. The infrastructure funding priority outlines WIN’s essential objectives and urges EPA’s full support for a long-term federal funding source for clean and safe water. AMSA also expresses its continued support for the TMDL program, while outlining several areas where the Agency should look to improve the process as well as the underlying water quality standards and listing approaches. The list also provides recommended improvements to the proposed SSO rule.

The Regulatory Priorities list also details a number of other areas where improvements can be made under Clean Water Act programs. Specific recommendations are made to improve national programs relating to biosolids management, mercury use and disposal, pretreatment, water quality standards, and wet weather control. AMSA also calls attention to the need to reintegrate the Office of Enforcement & Compliance Assurance (OECA) and EPA’s National Program Offices, and to improve Regional Office coordination and responsibility. The National Office has requested a meeting with the new Administrator to discuss AMSA’s Regulatory Priorities. In the interim, AMSA has already had a preliminary meeting with Administrator Whitman’s Chief of Staff to discuss water/wastewater infrastructure needs and the Regulatory Priorities List. For a copy of the Regulatory Priorities see the Clean Water Advocacy section on AMSA’s website at http://www.amsa-cleanwater.org.

 

EPA Initiates Dioxin in Biosolids Survey
In late January, EPA initiated a random survey of dioxin levels in sewage sludge at over 100 POTWs. This effort is expected to support the Agency’s rulemaking efforts concerning dioxin in biosolids and complement AMSA’s voluntary efforts to collect additional data on dioxin. EPA’s sewage sludge samples will be analyzed for dioxins, furans and co-planar PCBs, and portions of the samples may be preserved for testing of additional compounds and elements at a future date. An EPA letter requesting cooperation in collecting samples of sewage sludge was sent to selected POTWs on January 22.

In its January 22 letter, EPA indicates its belief that dioxin levels in the environment have generally been decreasing over time. EPA states that information obtained from the survey will help determine the extent of this decrease in the levels of dioxin and dioxin-like compounds in sewage sludge. Results of EPA’s survey are expected to become available by June 2001.

While EPA moves forward with its survey, AMSA is in the middle of completing its own survey of dioxins in biosolids. Initiated in late 2000, AMSA’s contract lab is currently analyzing nearly 200 samples submitted by over 100 participating POTWs. AMSA’s Board of Directors recently approved additional technical action funds for the project to ensure adequate quality assurance/quality control and to assess the impact of EPA’s dioxin reassessment on the proposed rule. The results of the survey/assessment will provide AMSA with the data necessary to judge the impact of any Agency rulemaking. AMSA’s final survey report is expected to be released in May 2001. EPA has indicated that it will use both its own survey data, as well as AMSA’s data, in developing a final rule on dioxins in sewage sludge. Publication of a final rule is scheduled for December 2001; however, EPA has indicated a desire for an extension to this court-ordered deadline.

 

AMSA Board Approves Funds for Assessment of Radioactivity Survey Results
On February 2, AMSA’s Board of Directors approved Technical Action Fund (TAF) funding to address forthcoming results of a Federally-sponsored survey of radionuclide levels in biosolids. The Interagency Steering Committee on Radiation Standards (ISCORS), which is composed of representatives from EPA, Nuclear Regulatory Commission, and Department of Energy officials, plans to issue the results of a survey of radionuclides in biosolids by June 2001. While the survey results will be released in June, ISCORS is not expected to complete work on a "dose model" report, which estimates the level of exposure to workers and the general public from radionuclides in biosolids, until later this year. AMSA is concerned that release of the survey results without an accompanying assessment of exposure levels may unnecessarily raise new concerns regarding biosolids practices and products.

To ensure that adequate interpretation of ISCORS survey results is available when the results are released, AMSA’s Board approved funding to complete revision and finalization of a draft AMSA radiological dose model report to reflect current modeling methodologies developed through the ISCORS committee. The dose model report is expected to allow AMSA members to evaluate whether levels of radionuclides in their sludge or ash pose a concern for exposed individuals. The AMSA dose model report is expected to be completed in June 2001. A copy of the ISCORS draft dose model report is available at www.iscors.org/sewage.cfm.

 

National Academy of Science to Begin Review of Part 503
The National Academy of Science has appointed sixteen experts to a study Committee to review information relevant to toxicological and pathogenic risks of sludge following land application and determine their applicability to the 503 rule. Originally requested by EPA, the Committee will:

  1. Review the risk-assessment methods and data used to establish concentration limits for chemical pollutants in sludge to determine whether they are the most appropriate approaches. The committee will also consider the NRC's previous (1996) review and determine whether that report's recommendations have been appropriately addressed. Issues to consider include: a) how the relevant chemical pollutants were identified; b) whether all relevant exposure pathways were identified; c) whether exposure analyses, particularly from indirect exposures, are realistic; d) whether the default assumptions used in the risk assessments are appropriate; and e) whether the calculations used to set pollutant limits are appropriate.
     
  2. Review the current standards for pathogen elimination in sludge and their adequacy for protecting public health. The committee will consider: a) whether all appropriate pathogens were considered in establishing the standards; b) whether enough information on infectious dose and environmental persistence exists to support current control approaches for pathogens; c) risks from exposure to pathogens found in Class B sludge; and d) new approaches for assessing risks to human health from pathogens in sludge.
      
  3. Explore whether approaches for conducting pathogen risk-assessment can be integrated with those for chemical risk-assessment. If appropriate, the committee will recommend approaches for integrating pathogen and chemical pollutant risk-assessments.

Thomas Burke, an associate professor at John Hopkins University School of Hygiene and Public Health has been appointed to chair the Committee. The Committee is composed primarily of professionals from academia, and includes two environmental consultants and one state biosolids program coordinator (Greg Kester, Wisconsin Department of Natural Resources). A full Committee membership list can be found at: http://www4.nas.edu/webcr.nsf/ProjectScopeDisplay/BEST-K-00-02-A. The Committee will hold their first meeting on March 14-15, 2001. The Committee is expected to author a consensus report by the summer of 2002.

 

AMSA Testifies on Proposed Metal Products and Machinery Effluent Guidelines
On February 22, AMSA’s Pretreatment and Hazardous Waste Committee Chair, Guy Aydlett, testified on behalf of AMSA at a hearing on the proposed metal products and machinery effluent guidelines and standards rule, published in the January 3 Federal Register. The Washington, DC hearing was the third of EPA's four scheduled regional public meetings on the proposal. The Gulf Coast Waste Disposal Authority testified on AMSA's behalf on February 13 at the second public hearing in Dallas, TX. In both sets of testimony, AMSA cited major concerns with the proposal, specifically with regard to the Agency’s estimates for POTW administrative burden, POTW and water quality benefits, baseline industrial pollutant loadings, and the achievability of the proposed standards. Many of AMSA’s comments support the concerns of the metal finishing and printed circuit board industries who also are also critical of EPA’s data gathering techniques, cost of compliance estimates, and assumptions regarding achievability of proposed standards. The proposed standards are 50 to 90 percent lower than EPA's current metal finishing effluent guidelines.

In order to statistically assess the accuracy of EPA’s cost/benefit analysis and the rule’s impact on POTWs and industries, AMSA’s Board of Directors recently approved TAF funding to collect additional data from the 150 POTWs EPA originally surveyed as part of the rule’s development. Additionally, AMSA has requested a 90-day extension to the public comment period which currently ends on May 3. A full copy of AMSA's testimony, along with a request for comment will be distributed to the membership via a forthcoming Regulatory Alert.

 

Comment Deadline Extended for Proposed Iron and Steel Effluent Standards
On February 14, 2001 EPA announced a 30-day extension of the public comment period for the proposed effluent guidelines and standards for the iron and steel category. EPA proposed the iron and steel guidelines on December 27, 2000. The new public comment deadline is March 26, 2001. AMSA’s Pretreatment and Hazardous Waste Committee is currently developing a response to the proposal.

 

Pretreatment Streamlining Rule Could Be Issued By Summer 2001
In recent discussions with AMSA, EPA has indicated that it is renewing efforts to finalize its proposed streamlining changes to the national pretreatment regulations at 40 CFR Part 403. The streamlining changes were originally proposed on July 22, 1999 and include changes to reduce the current burden to POTWs and industrial users. Some of the changes include: 1) exclusions or variable requirements for smaller facilities that contribute insignificant amounts of pollutants; 2) clarification of requirements for implementing pretreatment standards; and 3) more flexible reporting, inspection and sampling requirements. AMSA and the Water Environment Federation (WEF) submitted a white paper on the proposal in November 1999. While supportive of many of the proposed changes, AMSA expressed the need for additional changes to significant noncompliance (SNC) criteria, revised pH standards, and the definition of de minimus industrial users. EPA has indicated that work is underway to complete a final version of the rule for review by the new EPA Assistant Administrator for Water by June 2001.

 

EPA Releases Awaited Endangered Species Act MOA
Culminating more than seven years of sporadic negotiations, on February 22 EPA published a Memorandum of Agreement (MOA) designed to improve Endangered Species Act (ESA) compliance and coordination between EPA, the Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS). The MOA addresses the protection of endangered and threatened species under the Water Quality Standards and NPDES programs established by CWA ยงยง 303(c) and 402. The MOA can be viewed at www.epa.gov/ost/standards/esa.cfml

The MOA promotes enhanced interagency cooperation and improved recovery of endangered species and critical habitat. The MOA provides mechanisms for the FWS and NMFS to participate in EPA’s development of water quality criteria and standards to recognize any unique requirements for listed and proposed species and designated and proposed critical habitat. The MOA also identifies a collaborative mechanism for planning and prioritizing future CWA/SEA actions, and for resolving any potential conflicts or disagreements between agencies.

The final MOA does not resolve specific issues raised in AMSA’s April 1999 comments. The MOA still commits EPA to propose amendments to the water quality regulations at 40 CFR Part 131, a step AMSA supports. However, EPA also commits to propose a "prohibition on mixing zones or variances that would be likely to cause jeopardy" -- language AMSA recommended EPA delete. AMSA could have concerns with a proposed mixing zone prohibition depending on how EPA eventually crafts this language. AMSA also recommended that EPA not pursue national consultation on published criteria for the protection of aquatic life, and instead perform state-by-state consultations of water quality standards. The final MOA retains the national consultation approach and rejects state-by-state evaluations as inefficient. Since the MOA is an internal management document, it will be difficult to challenge provisions of the final agreement. However, the MOA provides for revisions over time, and AMSA may raise critical issues to EPA for consideration in future MOA updates.

 

AMSA Requests Review of SSO Proposal Prior to Publication
On March 5, AMSA, other municipal organizations (National League of Cities, National Association of Counties, Tri-TAC, and the American Public Works Association) and the Water Environment Federation delivered a joint letter to EPA Administrator Whitman requesting that the Agency review the unpublished January 5, 2001 SSO proposal to "evaluate alternatives that are equally as protective of water quality" which includes an alternative that "establishes a standards for sanitary sewer collections systems that utilizes rigorous CMOM implementation for defining unavoidable overflow events in well-run systems." The letter faults the January 5 EPA proposal as based on the premise that sanitary sewer collection systems can be built and operated to never under overflow under any conditions.

The AMSA/municipal group letter was delivered as a result of a January 20 White House Office of the Press Secretary memorandum to heads and acting heads of federal agencies ordering a hold on the publication of any regulations until a review by the appropriate President Bush-appointed department or agency heads. As a result of the January 20, 2001 memorandum, the proposed sanitary sewer overflow (SSO) rule has been effectively delayed pending a review by new EPA Administrator Christine Todd-Whitman. There have been no indications yet of when this review will be completed and what implications the evaluation will have for the ultimate fate of the proposed rule.

In addition to the letter requesting review of the rule, AMSA’s National Office and SSO Work Group are proceeding without interruption in the formulation of substantive comments on the current pre-publication version of the proposed rule. AMSA has requested member agencies via Regulatory Alert 01-4 to review the current version of the proposed SSO rule and preamble, and submit comments to the National Office by April 2, 2001. AMSA has raised a number of significant concerns with the current version of the proposed rule. A section-by-section discussion of those concerns was included as part of Regulatory Alert 01-2. In summary, the National Office believes the regulation should be reevaluated with regard to:

  • Providing liability protection for unavoidable SSOs where a municipality is implementing its required Capacity, Management, Operation and Maintenance plan;
  • Expanding the types of wet weather conditions and other circumstances beyond the reasonable control of the POTW operator which cause unavoidable overflows;
  • Requiring reporting, notification and record keeping procedures only for those SSOs that reach waters of the U.S.;
  • Providing greater flexibility in remediation options, including peak excess flow treatment facilities;
  • Giving permitted POTWs sole discretion to determine whether responsibility for operating and maintaining satellite collection systems should fall under their discharge permit;
  • Incorporating the use of watershed management and integrated wet weather controls directly in the regulation; and
  • Providing the public with a realistic accounting of the costs and benefits arising out of this rulemaking.

 

AMSA Pursues Blending Policy Details With EPA
On March 1, AMSA and other municipal advocates met with EPA officials to further develop a national policy on the blending of wet weather flows. "Blending" (also referred to as "recombination", "slipstreaming", and "internal bypassing"), is the practice of mixing partially-treated, disinfected wet weather flows with fully treated effluent prior to discharge to meet secondary treatment standards during wet weather events. In the wake of several EPA Regions asserting that blending is prohibited under the bypass regulations, EPA Headquarters is clarifying that this practice is permitted under certain prescribed conditions.

In late February, EPA Acting Assistant Administrator for Water Diane Regas sent letters to several Members of Congress in response to requests for EPA’s position on blending. The Regas letters outline the same approach presented in the Agency’s January 19, 2001 "Current [draft] Thinking on Peak Flows at POTWs" (distributed via Regulatory Alert 01-3). This approach would permit blending where: 1) the discharge meets effluent limitations based on secondary treatment and water quality standards; 2) the permit application and permit recognize the peak flow treatment scheme consistent with "generally accepted practices and design criteria"; 3) blending only occurs when flow exceeds capacity; 4) the treatment scheme is operated consistent with the permit; and 5) the permit contains "appropriate requirements for the collection system". During the meeting several topics were identified for further discussion, including how frequently facilities should be allow to blend; whether some flows may receive the "equivalent" of primary treatment; what are the "generally accepted practices and design criteria" for peak flows; and what EPA means by "appropriate requirements for the collection system". The National Office is requesting member input on these and other issues identified in Regulatory Alert 01-3 (Member Pipeline at http://www.amsa-cleanwater.org) by Monday, March 19.

 

Draft National Coastal Condition Report
Comments are due March 26, 2001 on a draft EPA report describing the condition of the Nation’s coastal waters. The draft is the first attempt to offer the public a comprehensive picture of the health of the Nation’s coastal waters. The draft concludes that the overall condition of coastal waters is fair to poor with some regional variation. EPA intends to use the report as a benchmark for measuring progress of coastal management programs in the future. EPA is specifically seeking comment on data completeness, choice of indicators, methodologies used to synthesize data, "bars" set for each indicated, and the draft’s overall completeness. A Regulatory Alert is being sent out to the membership this week on the draft report. The draft report may be found on EPA’s website at http://www.epa.gov/owow/oceans/cwap/downloads.cfml.

 

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