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AMSA February 2002 Regulatory Update

Member Pipeline - Regulatory - February 2002 Update

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: March 4, 2002

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AMSA's National Office is pleased to provide you with the Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to March 1, 2002. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA's web site at www.amsa-cleanwater.org. If you have any questions or comments, please contact the AMSA National Office at 202/833-AMSA or info@amsa-cleanwater.org.

Visit Regulatory Digest Site For One-Stop Access to AMSA's Regulatory Activities
AMSA has significantly enhanced the Regulatory Digest portion of the Association's web site to offer our members a faster and more comprehensive way to access current regulatory activities and communications. The Regulatory Digest now offers a complete, up-to-date summary of AMSA's regulatory activities. The Regulatory Digest also contains background descriptions on each issue, concise timelines, and the current status of each initiative, including web links to all of AMSA's related correspondence and access to key U.S. Environmental Protection Agency (EPA) documents. The Regulatory Digest is located at:
http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm.

 

Biosolids

AMSA Successful in Effort to Exempt Sludge Incinerators from Air Program
On February 12, 2002, the U.S. Environmental Protection Agency (EPA) took a long overdue action to remove sewage sludge incinerators (SSIs) from the scope of the Clean Air Act's (CAA) §112(d) technology-based maximum achievable control technology (MACT) program. EPA's action is the result of AMSA members' extensive efforts over the past several years to provide EPA with comments and data supporting the delisting action. EPA's Federal Register notice is available at http://www.amsa-cleanwater.org/private/legalalerts/leg02-3a.htm. The MACT program applies to "major sources" of hazardous air pollutants (HAPs), which are those sources with the potential to emit 10 tons per year (tpy) or more of any one HAP, or 25 tpy or more of any combination of HAPs. In the Federal Register notice, EPA notes that in July 1992 it placed SSIs on the CAA §112(c)(6) list of source categories to be regulated by MACT standards. EPA states, however, that after evaluating available emissions information, the Agency "concluded that the Sewage Sludge Incineration source category does not have any sources with the potential to emit HAP at a level approaching major source levels." EPA's delisting decision is not subject to legal challenge or public comment. As a result of this action, AMSA's participation in a related Sierra Club suit on a variety of MACT standards will be unnecessary. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Intervenes in Two Clean Air Cases to Protect POTWs and Incinerators
AMSA is involved in two lawsuits involving EPA's alleged failure to meet CAA deadlines. One suit seeks performance standards and other requirements under CAA §129 for "other solid waste incinerators," including SSIs. AMSA moved to intervene in this case on October 26, 2001 and awaits the court's ruling on our motion. AMSA's long-standing position is that SSI regulation under CAA §129 is unsupported by the statute because sewage sludge is not a "solid waste" generated by "commercial or industrial sources" as required by the CAA. The other case involves technology-based CAA standards for urban area sources of HAPs under CAA §112(k). Area sources are those emitting less than 10 tpy of any one HAP or less than 25 tpy of any combination of HAPs. POTWs are one of the area source categories EPA plans to regulate under the urban program. See 64 Fed. Reg. 38,721 (July 19, 1999). EPA also may regulate SSIs under the §112(k) program. AMSA moved to intervene in the CAA §112(k) case on February 12. AMSA believes that POTWs and SSIs are insignificant contributors of any of the HAPs of concern to EPA in urban areas, and that data EPA used to list POTWs as an area source category in 1999 do not reflect current emission rates. In addition, in late 2001 EPA contacted AMSA to obtain updated information on SSI emissions of cadmium compounds, one of the urban HAPs of concern. AMSA member agencies found EPA's SSI cadmium data incorrect by an order of magnitude, and that at least one agency identified by EPA no longer incinerates biosolids. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Pretreatment

AMSA Files Comments on EPA's Controversial Electronic Recordkeeping Rule
On February 27, AMSA submitted comments on EPA's proposed rulemaking on electronic recordkeeping and reporting. Initially proposed on August 31, 2001 (66 Fed. Reg. 46161), EPA twice extended the deadline for the comment period to allow for additional review by the public and to allow for two public meetings. The rulemaking was designed to implement a number of provisions of the Government Paperwork Elimination Act of 1998 (GPEA), primarily the removal of any barriers to electronic recordkeeping and reporting in EPA's programs. However, the proposal goes beyond implementing the GPEA provisions and addresses a number of other issues, including system security requirements. EPA's proposed regulations were intended to ensure that electronic records are as reliable as paper records by preventing fraud and maintaining the integrity of the records. Unfortunately, the scope of the proposal as it is currently written, encompasses more records than EPA had intended. As proposed, the requirements would apply to any information or data that was generated or maintained electronically at any point in its lifecycle. POTWs which currently maintain information or data electronically would be required to ensure that their systems complied with the requirements and invest in upgrades or new systems if deficiencies were found. AMSA expressed concern that the current proposal would restrict expanded electronic recordkeeping and reporting and recommended that the Agency withdraw the entire rulemaking and proceed with guidance instead following discussions with other EPA program offices and stakeholders. AMSA will continue its dialogue with the Agency and alert the membership of any new developments. A link to AMSA's comments can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/02-27-02CROMERRR.pdf. For further information, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.

EPA Proposes Effluent Guidelines for Meat and Poultry Products Sector
On February 25, EPA published the proposed Meat and Poultry Products Effluent Limitations Guidelines (ELG) (67 Fed. Reg. 8582). Although EPA proposes to take no action for indirect dischargers, the Agency solicits comment on several regulatory options and seeks input on a handful of reported interference episodes at POTWs. During discussions with EPA over the last six months, AMSA has maintained that POTWs are capable of handling the pollutants discharged from meat and poultry processing facilities. Though EPA cites approximately 20 incidents of interference caused by meat or poultry facilities, the Agency admits that they do not have all the relevant details and that some of the cases may have been one-time events.

AMSA has already begun work to prepare comments on the proposal. Given that EPA has only provided a 60-day comment period, AMSA is drafting a letter to request an extension of the comment period to ensure it has adequate time to collect comments and other relevant information from the membership. AMSA will participate in both public hearings for this rule, scheduled for March 14, 2002, in Kansas City, Missouri, and April 9, 2002, in Washington, DC. AMSA also will undoubtedly leverage its forthcoming white paper on effluent guidelines to support its comment preparation efforts. Currently under review by the Pretreatment and Hazardous Waste Committee, the white paper outlines AMSA's key concerns with the current ELG program and highlights some recommendations for the future. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org. A copy of the proposed rule can be obtained at:
http://www.epa.gov/fedrgstr/EPA-WATER/2002/February/Day-25/w2838.pdf.

 

Water Quality

AMSA to Issue TMDL Listing Guidelines
AMSA, the American Farm Bureau Federation, and the Federal Water Quality Coalition are set to finalize and release a set of joint recommendations on how to improve the state TMDL listing and assessment process. The document, titled Preparation of Integrated Water Quality Monitoring and Assessment Reports: Recommendations for State Methodologies and Reporting (the "TMDL Listing Paper"), will be released in mid-March at the Association of State & Interstate Water Pollution Control Authorities (ASIWPCA) meeting in Washington, DC. The TMDL Listing Paper, funded in part by AMSA's technical action fund (TAF), will set forth recommendations on for states in the following areas of the listing process: pre-listing evaluation of water quality standards; collection of data and information; evaluation of existing data and information; development of the integrated report; and delisting procedures. The TMDL Listing Paper includes a discussion of the requirements of the current federal rules and EPA listing guidance (see AMSA Regulatory Alert RA 01-21), and recommendations on how states can best implement those requirements in a scientifically sound, legally defensible manner. Where states have already addressed some of these issues, examples from those state rules and methodologies are also included. For more information on this project, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

GAO Report Cites Inconsistent State Approaches to TMDL Listing
On January 11, the U.S. General Accounting Office (GAO) released an analysis of state methodologies used to identify impaired waters for the TMDL program. The GAO report, Water Quality: Inconsistent State Approaches Complicate Nation's Efforts to Identify Its Most Polluted Waters, attributes the large variation among the state approaches to differences in (1) water quality standards, (2) types of monitoring practices used to assess compliance; (3) procedures used to assess water quality data; and (4) EPA guidance on de-listing waters. The GAO report indicates that these inconsistencies call into question the total number of impaired waters and the number of TMDLs that states say will be needed. The report finds numerous cases in which neighboring states share a common body of water that is listed as impaired by one state but not by the other. The GAO recommends that EPA take action to increase state consistency in listing impaired waters, including the issuance of the long-delayed Consolidated Assessment & Listing Methodologies (CALM) guidance. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Asks EPA Administrator to Initiate a National Dialogue on Mercury
On February 15, AMSA wrote EPA Administrator Christine Whitman in an effort to underscore the need for a national dialogue on mercury and to highlight some of the unique issues regarding mercury that POTWs face. AMSA also expressed interest in participating in any national dialogue on long-term solutions to the mercury problem. For the last few years, AMSA has continued to advocate for the development of a national strategy for addressing mercury releases to the environment. As more and more POTWs receive effluent limits for mercury, and as we learn more about the sources of environmental mercury and its behavior, the need for a national strategy is even more evident. Late last year, the state environmental organizations (including ASWIPCA and ECOS) wrote Administrator Whitman requesting that she initiate a dialogue between the Agency and the state groups, collectively known as the Quicksilver Caucus. Despite numerous efforts at the state level, the letter admitted that states alone cannot solve the mercury problem, and that collaborative efforts are necessary to begin tackling some of the tough issues facing the nation including air deposition, methylmercury levels in fish, and the retirement and long term management of mercury waste. AMSA's letter can be found at:
http://www.amsa-cleanwater.org/private/legreg/outreach/2-15-02whitman.pdf.

Group Appeals AMSA-Supported Decision on Permit Shield to Supreme Court
The October 10, 2001 Fourth Circuit victory for POTWs on the Clean Water Act (CWA) permit shield may be reviewed by the U.S. Supreme Court, if the high Court accepts a February 5 petition for certiorari filed by the citizens group. In Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 268 F.3d 255 (4th Cir. 2001), the Fourth Circuit confirmed that National Pollutant Discharge Elimination System (NPDES) permits offer strong protection from enforcement for the discharge of pollutants listed in an NPDES permit, as well as pollutants not listed but whose discharge is reasonably contemplated by the permitting authority at the time a permit is issued. AMSA and the Water Environment Federation (WEF) filed a joint amicus brief in the case in August 2000, successfully arguing that the county should not be liable for unlisted pollutants under the CWA's permit shield.

The citizen's petition for U.S. Supreme Court review presents the following questions to the Court: "1) does the "permit shield" provision in the Clean Water Act allow a permit holder to discharge pollutants not listed on its NPDES permit?; 2) may a federal court construe the "permit shield" provision in the Clean Water Act to license a permit holder to discharge a pollutant in quantities that violate the applicable state water quality standards, when that pollutant is not listed on its NPDES permit?; and 3) does a federal court have the power to make legal the discharge of a pollutant not listed on a NPDES permit in quantities which the state permitting agency could not have permitted under its governing state law?" Under Supreme Court procedure, the County has 30 days to file an opposition to the petition for certiorari, and the citizens then have 30 days to respond. Notably, the Court denies approximately 90% of the petitions for certiorari filed. If the Supreme Court grants review, AMSA expects to become involved in this case before the Supreme Court as amicus. The petition for certiorari is posted on AMSA's Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Wet Weather

AMSA Wet Weather Survey to be Distributed in March
In late March, AMSA's POTW members will be receiving the 2002 Wet Weather Survey. The Wet Weather Survey is part of AMSA's technical action fund (TAF) project on wet weather capacity and blending issues, which began in January. The objective of the Wet Weather Survey is to develop a more thorough understanding of how members design their collection systems and treatment plants to handle wet weather flows. This information will be critical to AMSA's ongoing regulatory negotiations with EPA on a reasonable sanitary sewer overflow (SSO) rule and blending policy. The survey will also provide the foundation for proposing site-specific methodologies for POTWs and collection system owners and operators to follow when setting site-specific peak flow capacity in the collection system, and in designing treatment plants for peak wet weather flows.

Much like this year's Financial Survey, to facilitate more efficient submittals and to make it easier to fill out, AMSA's Wet Weather Survey will be available on-line through the web site. Following the survey, a final report will be issued in July 2002. We urge you, and your staff, to complete the Wet Weather Survey to ensure that the data collected is a true representation of nation's POTWs. Please contact Greg Schaner if you have any questions concerning the Wet Weather Survey, at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Releases CSO Report as Companion to EPA's Report to Congress
On January 29, EPA's Office of Water released its Report to Congress: Implementation and Enforcement of the Combined Sewer Overflow Policy ("CSO Report"), presenting data and findings on the progress made by EPA, states, and municipalities in implementing and enforcing the Combined Sewer Overflow (CSO) Control Policy ("CSO Policy") since 1994. The CSO Report can be accessed electronically through the AMSA web site at http://www.amsa-cleanwater.org/private/epa/dec01epacsorep.pdf or through EPA's web site at http://www.epa.gov/npdes. In response to EPA's CSO Report, AMSA released its own assessment of municipal progress and program challenges. The report, Communities at Work ... The National Response to Combined Sewer Overflows ("CSO Companion Report"), summarizes data from AMSA's CSO survey, and provides Congress and EPA with recommendations on how to move the program forward in the coming years. AMSA's CSO Companion Report is accessible through the AMSA web site at http://www.amsa-cleanwater.org/advocacy/01-31-02csoreport.pdf, or by contacting info@amsa-cleanwater.org. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Committee Raises Concerns with Draft EPA Wet Weather Guidance
During AMSA's Wet Weather Committee meeting on February 5, members raised serious concerns with the potential conflicts between the regulatory requirements to be proposed in EPA's SSO rulemaking and the Agency's December 21, 2001draft guidance titled NPDES Requirements for Municipal Wastewater Treatment During Wet Weather Conditions. The draft guidance, which EPA has indicated is on the "fast track" to be finalized, advises states and Regions on how to address the following issues in a wastewater treatment plant's National Pollutant Discharge Elimination System (NPDES) permit:

1) Discharges from emergency overflow structures located within municipal sanitary sewer collection systems;
2) Discharges from wet weather treatment facilities, referred to by EPA as peak excess flow treatment facilities (PEFTF); and
3) Blending or recombination designs at publicly owned treatment works (POTW) treatment plants.

While AMSA's members continue to be generally supportive of the blending provisions, there is widespread concern that the provisions addressing PEFTFs and emergency overflow structures will conflict with the rulemaking process on SSOs. AMSA will recommend that the Agency consider separating the blending provisions from the other portions of the draft guidance, and finalizing the blending piece as a separate guidance or policy. The Association will also recommend that the PEFTF and emergency overflow structures provisions be incorporated into the preamble of the SSO proposed rule for public comment, and that the Agency not move forward with these provisions as part of the guidance. For further information, please refer to AMSA Regulatory Alert RA 02-1 at http://www.amsa-cleanwater.org/private/regalerts/ra02-01.cfm, which includes a synopsis of the draft guidance and potential implications for members. Please forward any comments to Greg Schaner at gschaner@amsa-cleanwater.org, or call with questions at 202/296-9836.

AMSA Taps Members to Participate in EPA's CSO-SSO Report to Congress
Under the Wet Weather Water Quality Act of 2000, EPA is required to issue a Report to Congress (the "CSO-SSO Report") by December 2003 summarizing (1) the extent of the human health and environment impacts caused by CSOs and SSOs, (2) the resources spent by municipalities to address these impacts, and (3) an evaluation of technologies used to address these impacts. As an initial step, the Agency has asked AMSA to appoint two members to assist in the planning of an experts' workshop on CSO and SSO impacts to be held in Washington, DC this spring. These members will also assist the Agency in defining the term "impacts" for the CSO-SSO Report and in identifying key data sources. AMSA will be represented by David Williams (East Bay Municipal Utility District), Chair of the Wet Weather Issues Committee, and Frank Greenland (Northeast Ohio Regional Sewer District) in this planning process. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

EPA's Draft Issue Paper Lists Potential Types of Watershed Permits
EPA is circulating a draft issue paper, Promoting Watershed-Based NPDES Permits, which outlines ways to build on the Agency's 1994 NPDES Watershed Strategy and produce a plan to focus more aggressively on implementation of watershed-based permits. This paper may signal an intention by EPA to move towards AMSA's long-held position that currently separate, but related, programs like SSOs, CSOs, and stormwater management, should be comprehensively managed. The issue paper envisions the use of several different types of NPDES permit tools to foster greater use of watershed implementation plans. The following potential permit types are referenced:

AMSA will continue to track the progress of this issue paper. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

 

EPA Posts

Bush Nominates Suarez for Enforcement Office
On February 26, President Bush announced his nomination of John Peter Suarez to head the EPA's Office of Enforcement & Compliance Assurance (OECA). Suarez is currently the director of New Jersey's Division of Gaming Enforcement. Prior to his position as Director of Gaming Enforcement, Suarez spent six years as a federal prosecutor and advised then-governor of New Jersey Christine Todd Whitman on criminal justice matters. President Bush's first nominee for the position, Donald Shregardus, withdrew his name after he drew increasing pressure from senators criticizing his former actions as director of the Ohio Environmental Protection Agency.

Meanwhile, EPA has appointed Steven J. Shimberg, who has more than 20 years experience dealing with environmental matters, Associate Assistant Administrator for Enforcement and Compliance Assurance.  From 1997 to 2001, Shimberg was Vice President of Federal and International Affairs, at the National Wildlife Federation in Washington, DC. Shimberg served in key staff positions in the Senate from 1981 to 1997, including staff director and chief counsel of the Environment & Public Works (EPW), and counsel to the late Senator John H. Chafee (R-RI). From 1978 to 1981, Shimberg was a prosecuting attorney in the Land and Natural Resources division of the U.S. Department of Justice.