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AMSA February 2003 Regulatory Update

Member Pipeline - Regulatory - February 2003 Update

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To: Members & Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: March 5, 2003

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The National Office of the Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the February 2003 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to March 5, 2003. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm. Unless another contact person is specifically listed, call or email questions to Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA’s 2003 Winter Conference a Success
With nearly 300 attendees, AMSA’s Winter Conference, The Evolving Public Utility: Leading the Workforce of Today, was a huge success, demonstrating the leadership AMSA and its public agency members are providing to maintain and improve the competitive edge of the nation’s publicly owned wastewater treatment works (POTWs). In addition to the informative presentations by a variety of experts on workforce-related issues, such as gainsharing, succession planning, pay-for-performance programs, and labor-management cooperation, AMSA unveiled its key 2002 Financial Survey at the conference. The Survey contains important statistical information that bolsters many of AMSA’s initiatives discussed during the conference’s committee meetings. Conference presentations and materials are available online on AMSA’s web site at http://www.amsa-cleanwater.org/meetings/03winter/ppt/. Copies of the 2002 Financial Survey will be mailed to members in early March. Additional copies of the Survey may be purchased on AMSA’s web site at http://www.amsa-cleanwater.org.

 

Biosolids

AMSA Makes Recommendations to EPA in Response to Biosolids Report
On January 30, 2003, AMSA sent a letter to U.S. Environmental Protection Agency’s (EPA’s) Assistant Administrator for Water G. Tracy Mehan, III, to outline the Association’s thinking on how EPA should respond to the biosolids report released last summer by the National Research Council (NRC), an arm of the National Academy of Sciences. The report, Biosolids Applied to Land: Advancing Standards and Practices, released July 2, 2002, makes a number of recommendations for additional scientific work to further reduce any lingering uncertainty regarding the land application of biosolids. EPA must respond to the NRC report by April 2003, and outline an action plan to address the NRC’s recommendations. AMSA’s letter outlines those aspects of the report that the Association believes will result in the greatest benefit to human health as well as the biosolids program itself. In the letter, AMSA outlined the following areas that it hopes the Agency will focus on: (1) the undertaking of exposure-assessment studies to compile additional human health data; (2) the creation of a response team for biosolids health reports; (3) an increase of compliance staff and resources; and (4) the conducting of a new national sewage sludge survey. AMSA’s letter may be found on our web site at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-01-Mehanletter.pdf.

EPA Given Deadline for Beginning National Academy Review of the Dioxin Reassessment
Language in the companion report accompanying EPA’s fiscal year 2003 budget states that if within 60 days of enactment of the budget, the Interagency Working Group (IWG), comprised of federal agencies with an expressed interest in dioxins, has not completed its review of the draft Dioxin Reassessment and issued a report, the Agency is instructed to contract with the National Academy of Sciences (NAS) “as quickly as possible thereafter so that the Academy may undertake a review of the Reassessment.” The deadline is not intended to interrupt the work of the IWG, but rather to ensure that the NAS review is not further delayed. The Agency was asked last year to have the Reassessment reviewed by the NAS, but in early Fall 2002, EPA asked for more time to convene an IWG to review and address the many toxicological questions that have been raised, including the scientific evidence used to classify the carcinogenicity of dioxin to humans, the Agency’s use of a linear dose-response model to estimate cancer risk levels, the scientific support for the use of the Toxicity Equivalency Factors for dioxins, and the use of body burden as the appropriate dose metric. It is unclear how much progress has been made by the IWG and it was noted that a year has passed since the Agency was first asked to pursue a review by the NAS. Following completion of the review by the NAS, EPA is “expected to move expeditiously to review the Academy’s report, make any appropriate changes as necessary in the Reassessment, and issue a final document.

EPA’s Dioxin Reassessment will have significant impact on future EPA rulemakings related to dioxins. AMSA had expected the Reassessment to impact the Part 503 Round II regulatory revisions to limit dioxin and dioxin-like compounds in biosolids that are land applied, but given the timing for the IWG review and an NAS study, it now seems unlikely that the Reassessment will be complete in time for EPA to meet its October 2003 court-ordered deadline for taking final action on dioxins in land applied biosolids. In fact, the NAS review could delay issuance of the final Reassessment for a year or more. AMSA will continue to track developments related to the draft Dioxin Reassessment and alert the membership as developments arise.

AMSA Reviews Latest Update on EPA/NRC Efforts on Radionuclides
In May 1994, the General Accounting Office (GAO), in its report “Nuclear Regulation – Actions Needed to Control Radioactive Contamination at Sewage Treatment Plants,” made specific recommendations for responding to contamination of sewage sludge by discharges from Nuclear Regulatory Commission (NRC) licensees. In response, the NRC and EPA, through the Sewage Sludge Subcommittee of the Interagency Steering Committee on Radiation Standards (ISCORS), conducted a national survey of wastewater treatment plants to assess the extent of radioactive contamination in sludge and ash, developed a dose model to evaluate the sewage sludge exposure pathway, and developed a draft guidance on radioactive material in sewage sludge and ash. On February 6, 2003, the NRC provided an update on its efforts to respond to the GAO Report, which made specific recommendations for responding to contamination of sewage sludge. The NRC noted in its update letter that the final survey report will be issued sometime in 2003. Preliminary results show that calculated radiation doses from radioactive materials in sewage sludge do not constitute a widespread public health threat in the U.S. However, it was noted that there is a potential for undesirably high radiation doses resulting from radon, a naturally occurring radionuclide, in certain limited scenarios. Measures for addressing radon levels will be included in the final guidance report issued by ISCORS.

The NRC also committed to working with EPA and POTW operators to develop a national approach for ensuring that radioactive materials in sludge are maintained at acceptable levels. The NRC and EPA will continue work to complete its dose model (expected in 2003) and issue a revised version of the guidance on radioactive material in sewage sludge also this year. The NRC indicated that it will consider rulemaking for the disposal of radioactive material by its licensees into the sewer system. AMSA will continue to track this issue and update the membership as more information becomes available.

 

Pretreatment

Whitman Signs MP&M Rule in Key Victory for AMSA, POTWs
On February 14, 2003, EPA Administrator Christine Whitman signed a final rule to establish wastewater controls for the Metal Products and Machinery (MP&M) industrial category. The final MP&M regulation only applies to about 2,400 facilities that generate oily wastewater. EPA is establishing limitations and standards only for facilities that directly discharge wastewaters from oily operations in the Oily Wastes subcategory. For years now AMSA has argued that additional controls on MP&M indirect dischargers were not necessary. Citing the successes of POTW local limits and voluntary programs like the Strategic Goals Program, AMSA’s Pretreatment & Hazardous Waste Committee met with EPA officials on a number of occasions and conducted detailed POTW surveys in an effort to demonstrate that the MP&M limits were not needed. AMSA would like to extend a special thanks to Guy Aydlett, Chair of AMSA’s Pretreatment & Hazardous Waste Committee, for his leadership on this issue and the other members of the Pretreatment & Hazardous Waste Committee who volunteered the time needed to score this victory. EPA expects to publish the rule in the Federal Register within the next two months. A fact sheet with more information is available on EPA’s MP&M website at http://www.epa.gov/waterscience/guide/mpm/rule.html.

AMSA Comments on EPA’s Draft Effluent Guidelines Strategy
On February 27, 2003, AMSA filed comments on EPA’s Draft Strategy for National Clean Water Industrial Regulations (Draft Strategy) (67 Fed. Reg. 71165), released on November 29, 2002. The Draft Strategy describes a process to identify existing effluent limitations guidelines (ELGs) that EPA should consider revising, and to identify any industrial categories for which the Agency should consider developing new ELGs. EPA is required to carry out this review every two years under section 304(m) of the Clean Water Act. EPA intends this new strategy to guide ELG development once the Agency’s obligations under the existing consent decree with the Natural Resources Defense Council (NRDC) are fulfilled. AMSA has already met with Agency officials on a number of occasions to further discuss the Draft Strategy. AMSA most recently attended a January 15 public meeting concerning the Draft Strategy in Washington, D.C. For the most part, AMSA supported EPA’s approach. AMSA noted that the most vital element of the Draft Strategy was EPA’s commitment to transparent decision-making. This component alone will greatly improve the POTW community’s ability to influence the ELG development process. In addition, AMSA strongly encouraged the Agency to move forward with a Pretreatment Streamlining Rule, which will help POTWs by reducing the administrative burden of running a pretreatment program. AMSA’s comments are located on our web site at http://www.amsa-cleanwater.org/private/legreg/outreach/02-27-03ELG.pdf.

 

Water Quality

AMSA Reviews EPA Report Finding High Levels of Mercury in Women of Child-bearing Age
EPA released a report on February 24, 2003, entitled America’s Children and the Environment, which states that one in 12 or eight percent of women of child-bearing age have “high levels” of mercury in their blood that can be passed to their children. The report also states that children of women with high levels of mercury are at risk of developing numerous health problems, including delayed development, neurological effects and mental retardation, and notes that many states have released advisories warning of increased levels of mercury found in the tissue of fish caught in the nation’s waterways. Members of AMSA’s Mercury Workgroup have lingering questions about the studies underlying the new report and some of the conclusions made in the report. For example, there is some question as to whether all of the effects observed were appropriately attributed to methylmercury and not some type of synergistic response between methylmercury and the high level of PCBs also found in the study population. The report indicated the largest source of mercury from human activities is the burning of coal. Despite the concerns with the underlying studies, the report lends support to AMSA’s position that a national mercury strategy that takes a holistic multimedia approach for all sources of mercury is needed. The report may be found on EPA’s web site at http://www.epa.gov/envirohealth/children/ace_2003.pdf.

AMSA Reviews GAO Report on State Water Quality Standards
GAO issued a report, titled Improved EPA Guidance and Support Can Help States Develop Standards that Better Target Cleanup Efforts, which focuses on two overarching questions regarding EPA’s water quality standards program: whether States, with EPA assistance, are changing designated uses when necessary; and whether EPA is updating its criteria documents and assisting States in setting criteria that can be compared with reasonably obtainable monitoring data. Items of interest in the report include:

The report calls on EPA to take a variety of actions, including issuance of guidance on use changes. The full report is found at http://www.gao.gov/new.items/d03308.pdf. The report demonstrates the need for federal guidance regarding the TMDL program and bolsters AMSA’s efforts urging EPA to propose its Watershed Rule.

Mehan Sends Memo to Regional Water Directors on Watershed-Based Permitting
On January 7, 2003, EPA's Assistant Administrator for the Office of Water, G. Tracy Mehan, III, sent out a policy memo to all Regional Water Division Directors describing the benefits of watershed-based permitting, the implementing mechanisms for this component of the watershed approach, and how EPA will be encouraging an increase in the use of watershed-based National Pollutant Discharge Elimination System (NPDES) permits. The policy memo was intended to demonstrate the Agency's significant level of support for developing and issuing NPDES permits on a watershed basis, an approach that produces NPDES permits that are issued to point sources on a geographic or watershed basis to meet watershed goals. AMSA has met with EPA staff on a consistent basis to discuss its general support of such a policy, as well as its concerns with potential inequities to POTWs should such a system be implemented, especially with respect to permits that would cover multiple dissimilar permittees such as POTWs and industrial dischargers. AMSA will continue to meet with EPA on this issue and to ensure that both the voice of the POTW community is heard in throughout the conceptual and implementation phases of this initiative. Mehan’s memo can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/01-07-03watershed-mehan.pdf.

AMSA Meets With EPA and Others on Status of Watershed Rule
On February 27, 2003, AMSA, along with numerous other TMDL program stakeholders, met with EPA Deputy Administrator Linda Fisher to gather information on why the review of the watershed rule (a.k.a. the TMDL rule) has stalled and to express a united front in support of expeditiously moving the package to the Office of Management and Budget (OMB) for formal interagency review and then out for public comment in the Federal Register. Several other EPA staff were present, including Ben Grumbles, Deputy Assistant Administrator in the Office of Water, Diane Regas, Director of the Office of Wetlands, Oceans, and Watersheds, Chuck Sutfin, Director of the Assessment and Watershed Protection Division of the Office of Wetlands, Oceans, and Watersheds, Office of Policy, Economics and Innovation staff, and others. The group was an impressive gathering of nearly every stakeholder affected by the TMDL program, including state and local, nonpoint, and industry/point interests. The activist community was not present.

AMSA stressed a number of key points to EPA at the meeting, including the broad stakeholder support for moving forward, the fact that the existing 1992 regulations plus guidance is not the solution, and the need for certainty, a national framework, and resource efficiency in the TMDL program. AMSA noted that, while it has not seen the most recent iteration of the rule’s provisions, if they are close to what EPA staff have presented in meetings and at conferences, AMSA will be generally supportive.

Linda Fisher was appreciative of the time and effort of all parties and the pledges of support, and indicated that EPA is still determining what the right next step is. The Watershed Rule package is "informally" in interagency review and the feedback so far is fairly positive. EPA is apparently most concerned with the issues other federal agencies, like the United States Department of Agriculture and OMB, are likely to raise during the interagency review.

Following the EPA meeting, a smaller group of stakeholders went to Capitol Hill to meet with Sharla Moffett-Beall, staff director of the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water, who indicated that Senator Michael Crapo (R-ID) is ready to engage with Administrator Whitman on moving this rule forward and she will be evaluating how best to do so. AMSA also continues to work with Senator Blanche Lincoln's (D-AR) staff to put together a letter for Senate signatures to urge the rule go forward. Finally, the same group will meet on March 3, 2003 with Michele Nellenbach and Aloysius Hogan to discuss the TMDL rule status. AMSA and the broader stakeholder group will also be meeting on March 12 with OMB officials to discuss the imperative nature of moving forward with the Watershed Rule process. For further information, contact Alexandra Dunn, AMSA, at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Reviews EPA’s Final Water Quality Trading Policy
On January 13, 2003, EPA published its final Water Quality Trading Policy (see 68 Fed. Reg. 1608). The trading policy seeks to support and encourage states and tribes in developing and putting into place water quality trading programs that implement the requirements of the Clean Water Act and federal regulations in more flexible ways and reduce the cost of improving and maintaining the quality of the nation’s waters. EPA's final Water Quality Trading Policy offers guidance to states on developing and implementing water quality trading programs. While AMSA applauds the trading policy for offering an innovative means to address nonpoint source pollution, the Association cautions that much more work remains to be done to rein in nonpoint sources. AMSA will continue to work with EPA on the implementation of the trading policy and will urge the Agency to fully address the issue of nonpoint source pollution. EPA’s trading policy is available on the Agency’s web site at http://www.epa.gov/owow/watershed/trading/tradingpolicy.html. For more complete review of the trading policy, please see AMSA’s Regulatory Alert 03-02 found on the Association’s web site at http://www.amsa-cleanwater.org/private/regalerts/ra03-02.cfm. For further information, contact Alexandra Dunn, AMSA, at 202/533-1803 or adunn@amsa-cleanwater.org.

EPA to Hold its 26th Annual Conference on Analysis of Pollutants in the Environment
EPA’s Office of Science and Technology is sponsoring the 26th Annual Conference on Analysis of Pollutants in the Environment on April 29-30, 2003 in Chicago, Ill., to discuss many aspects of environmental measurement (68 Fed. Reg. 8592). The conference is open to the public and will provide a forum for discussion of technical issues related to environmental water regulations and compliance monitoring. Representatives from EPA’s Office of Water will present the most recent developments in technology, along with state and independent laboratory experts, federal and state regulatory personnel, and consultants in the environmental measurements field. For more information on the conference, please visit http://dynseg.dyncorp.com/epa/ow/norfolk2003.nsf.

Following the conference there will be a public meeting (May 1, 2003, from 10 a.m. to 3 p.m., with a one-hour break from 12 p.m. to 1 p.m.) to discuss EPA’s recently completed assessment of detection and quantitation concepts and their application under Clean Water Act programs. The Agency intends to make the results of this assessment available through a public notice to be published in the Federal Register in March 2003. Following presentations by EPA, the public is invited to present comments on the assessment. Time will be made available to interested parties who send in a formal request to comment by April 5, 2003. Additional details are available in the Federal Register at http://www.epa.gov/fedrgstr/EPA-MEETINGS/2003/February/Day-24/m4246.htm.

 

Wet Weather

AMSA Continues to Track SSO Rule Progress
AMSA has learned that in the last few weeks Deputy Administrator Linda Fischer was briefed by EPA staff on the sanitary sewer overflow (SSO) rule package. Apparently this first meeting was designed to bring Fischer up to speed on the history behind the rule and where the current draft proposal stands. It is likely that additional briefings will be held in the near future to discuss the various regulatory alternatives in the Agency’s preamble and the possibility of handling some of the issues through guidance. Typically this level of review is conducted prior to the final stages of rule drafting and may signal the imminent initiation of Final Agency Review (FAR) on the proposal. The FAR process requires all relevant EPA offices to comment on the proposal and reach consensus on the draft rule’s provisions and preamble discussion before releasing it to OMB. The FAR process usually takes about two weeks. OMB will then have 90 days to review the proposal. AMSA understands that EPA is hoping to begin the FAR process as soon as possible, but that the process will not begin until the Agency can arrive at a greater level of consensus internally on the preamble’s discussion of alternatives. Among the alternatives that are being considered for inclusion in the preamble is AMSA’s concept of using implementation of the capacity, management, operation and maintenance (CMOM) plans as the standard for SSO control, instead of the current zero overflow standard in the proposed rule. AMSA will keep its members informed of developments in the SSO arena as they occur.

AMSA Meets with EPA Enforcement Officials on Blending
Although AMSA had expected a February 14, 2003 release of EPA’s national blending guidance, it continues to be delayed. To ensure the ultimate release of this key document, AMSA met on February 13, 2003 with Phyllis Harris, the Deputy Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA), and other high level Agency enforcement staff to review their position on blending. James T. Canaday, AMSA Board member and engineer-director of the Alexandria Sanitation Authority, Va., participated in the meeting, providing a succinct and informative picture of how treatment works use blending for environmental benefit and to maximize treatment of peak flows while still meeting permit limits. OECA staff made it clear that they believe blending is the byproduct of poor collection system maintenance and inadequate treatment/storage capacity. They also believe that to drive improvement in these areas the following are needed: a strict blending policy, proposing a sanitary sewer overflow package, and full implementation of the combined sewer overflow policy. AMSA made a strong case that prohibiting blending is a backward approach to achieving these operation and maintenance improvements and capacity enhancement measures, and would negatively impact water quality.

Subsequent to the meeting with AMSA, OECA met February 24th with Office of Water officials, including G. Tracy Mehan, III, to discuss their continuing objections to the current draft of the guidance. Mehan must next decide whether to seek review of the guidance at the Administrator level or issue the draft for public comment. AMSA does not have a new estimate of when the draft guidance may be released.

AMSA Urges Inclusion of Weak Link between Overflows, Illness
AMSA sent recommendations to EPA this week on its recently released report entitled Summary of the August 14-15, 2002, Experts Workshop on Public Health Impacts of Sewer Overflows. EPA’s Summary is important because of its potential impact on the Agency’s upcoming draft SSO regulation and the Agency’s CSO/SSO Report to Congress (RTC) due for release in December. AMSA’s primary concern with the Summary is its omission of the experts’ discussion pointing out that the total impact of sewer overflows on public health is relatively minor and that funds would be better spent implementing a “national hand-washing program” rather than spending billions of dollars on trying to eliminate all sewer overflows. Absent inclusion of this key dialogue, the Summary portrays a misleading picture that consensus was reached regarding a connection between overflows and waterborne illness. To remedy this mischaracterization, AMSA urged EPA to amend the Summary to include this key dialogue. AMSA also voiced concern that EPA may cancel a key stakeholder meeting which was originally scheduled as a follow-up to the Experts Workshop. AMSA suggested that such a meeting should be timed to follow AMSA’s upcoming National Environmental Policy Forum (May 17-21, 2003) in Washington, D.C., when many key stakeholders will already be in town. AMSA’s letter is available at http://www.amsa-cleanwater.org/private/legreg/outreach/02-20-03Experts.pdf.

 

EPA Staffing Issues

OWM’s Water Permits Division Gets New Industrial Branch Chief
Deborah Nagel recently assumed her new role as Chief of the Industrial Branch of the Water Permits Division in EPA’s Office of Wastewater Management. Deborah replaces Clive Davies, who was serving as acting chief.