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To: Members & Affiliates
From: National Office
Date: September 2000

The National Office is pleased to provide you with the September 2000 Regulatory Update. This Update provides an overview of relevant regulatory issues current to October 6, 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 Initiates Dioxin Survey
AMSA’s Biosolids Management Committee, with the approval of AMSA’s Board of Directors, has initiated a voluntary survey to determine current levels of dioxin-like compounds (e.g., dioxin, dibenzofurans and coplanar PCBs) in biosolids. A notice announcing the survey was distributed to the membership on September 28 via Regulatory Alert RA00-19. The survey is expected to support AMSA’s comments on EPA’s December 23, 1999 proposed rule to limit dioxin, dibenzofurans and coplanar PCBs in biosolids that are land applied, and is expected to help: 1) determine whether or not dioxin concentrations in biosolids are remaining the same or diminishing; and 2) ensure that an environmentally sound and technically correct dioxin limit is established for biosolids that are land applied.

 AMSA has requested those agencies that volunteer to complete the "Intent to Participate" form contained in Regulatory Alert RA 00-19 by November 1, 2000, and submit samples by January 15, 2001. A final report is expected to be published in April 2001. If you have any questions, please contact Mark Hoeke, AMSA 202/833-9106 or Bob Dominak, NEORSD 216/881-6600.

 

EPA Allows Flexibility in Pretreatment Program for Project XL Participants
On October 6, EPA proposed changes to the National Pretreatment Program regulations to allow Publicly Owned Treatment Works (POTWs) that have completed the Project eXcellence and Leadership (Project XL) selection process, including Final Project Agreement (FPA) development, to modify their approved local Pretreatment Programs. These POTWs would be allowed to modify their programs following the procedures in 40 CFR 403.18, and implement the new local programs as described in their FPAs.

Currently, five POTWs have requested flexibility through the Project XL FPA approval process. The POTWs are: The Narragansett Bay Commission (NBC) in Rhode Island; the Jeffersontown

Wastewater Treatment Plant (WWTP), owned and operated by the Louisville and Jefferson County Metropolitan Sewer District (MSD) in Kentucky; the Metropolitan Water Reclamation District of Greater Chicago (Chicago) in Illinois; the City of Albuquerque (Albuquerque), New Mexico; and the City of Denton (Denton), Texas. The FPA for NBC lays out the following flexibilities: 1) Reduced self-monitoring requirements for ten categorical industrial users (CIUs) for tier 1 facilities; 2) reduced inspection frequency for ten CIUs tier 1 facilities from once every year to once every two years, and; 3) allow participating CIUs tier 1 facilities to not sample for pollutants not expected to be present. Under the FPA for MSD, the POTW is requesting flexibility to: 1) use an alternative definition for significant industrial user (SIU); 2) allow participating CIUs to not sample for pollutants not expected to be present, and; 3) use an alternative definition of significant noncompliance (SNC). The Chicago FPA describes flexibility that includes: 1) use of an alternative (in relation to the pretreatment streamlining proposal) definition for de minimis categorical industrial user (CIU), and; 2) reduced self-monitoring and self-reporting requirements for participating CIUs, and; 3) use alternative monitoring methods. The Albuquerque FPA lays out flexibility to: 1) use an alternative definition of SIU; 2) use an alternative definition of SNC; 3) reduce permitting requirements for participating IUs; 4) use alternative monitoring methods, and; 5) reduce reporting requirements for participating IUs. The Denton FPA lays out flexibility to: 1) reduce its monitoring of participating IUs, and; 2) reduce its inspection of participating IUs.

In exchange for these flexibilities, each individual POTW would need to commit to produce certain proportional amounts of superior environment performance as laid out in the FPA and maintain all legal and preventative environmental health and safety standards. Complete project site-specific descriptions can be found on the web at: http://www.epa.gov/projectxl/. The changes proposed by EPA include a new

subsection, 40 CFR Part 403.20 to the pretreatment regulations that allows these POTWs to include legal authorities and requirements that are different than the administrative requirements otherwise applicable under the Part 403 regulation. The POTW must submit any such alternative requirements as a substantial program modification in accordance with the procedures outlined in Sec. 403.18. All public comments on the proposed rule must be received on or before November 6, 2000.

 

EPA Proposes to Regulate Chlorine as Pesticide
On September 18, 2000, EPA provided notice of its intent to reclassify the use of chlorine gas for water and sewage treatment as a "restricted use" under federal pesticide labeling and application regulations. This reclassification would allow only certified and trained applicators to use chlorine gas. POTW plant operators using chlorine gas would be required to receive additional training as "certified applicators."

Restricted use pesticides may be applied only by or under the direct supervision of specially trained and certified applicators. Certification and training programs are conducted by states, territories, and tribes in accordance with national standards set by EPA. The September 18 notice stresses the need to integrate certified applicator training into existing wastewater operator training programs, such as those required under Occupational Safety and Health Administration’s (OSHA) Process Safety Management Program and EPA’s Risk Management Program. EPA also indicates that not every worker will need to receive certified applicator training; although one certified applicator would need to be present for all operations.

EPA issued its original Reregistration Eligibility Decision (RED) decision on chlorine gas in February 1999. EPA’s original position was that the majority of uses for chlorine gas should be classified as "restricted use," with the exception of water and sewage treatment, and residential pool treatment. EPA stated that "chlorine products registered for drinking water, sewage and wastewater treatment uses, and residential pool uses will not be considered ‘restricted use’ because few related accidents or incidents of poisoning have been reported, suggesting that existing requirements are satisfactory." With the September 18, 2000 notice, EPA has indicated a reversal of its original February 1999 decision concerning use of chlorine gas in water and sewage treatment.

EPA has reopened the comment period for 60 days until November 15, 2000 to allow interested stakeholders to provide comment on EPA’s proposed expansion of the restricted use for chlorine gas. A copy of the Federal Register notice was distributed via Regulatory Alert RA 00-20. AMSA has solicited comments from the membership by November 1, 2000.

 

AMSA Urges EPA to Change Course on Interim Permitting Guidance Document
On September 11, members of AMSA's Executive Committee and Board of Directors met with EPA Assistant Administrator for Water Chuck Fox in Washington, DC. The discussion focused on EPA's current efforts to develop an interim permitting guidance both at the national level and in Region IX. The document is intended to provide guidance to permit writers for developing water quality-based effluent limits prior to the development of a TMDL. A review of an early August 31, 2000 draft of the national guidance revealed that while several options were being considered, point sources were unfairly targeted by the agency during the period prior to development of State TMDLs. During the September 11 meeting, Fox requested AMSA’s review of the legal and scientific flaws embodied in EPA's draft interim permitting approach. AMSA submitted a response on September 22 which argued that the approach: 1) was contradictory to watershed management approaches; 2) will result in unnecessary expenditures of limited resources without corresponding environmental benefit, and 3) that EPA has discretion under the law to account for the TMDL process during the interim permitting timeframe. AMSA ultimately urged EPA to focus its resources on assisting states in completing TMDLs rather than supporting a flawed interim permitting approach. AMSA plans further discussion with EPA at its Legal Affairs meeting on October 17 at WEFTEC in Anaheim, California. For a copy of AMSA’s letter, visit AMSA’s website at http://www.amsa-cleanwater.org.

 

AMSA Urges Flexibility in Nutrient Guidance for Rivers and Streams
On September 25, AMSA submitted comments to the U.S. Environmental Protection Agency’s (EPA) strategy for establishing national numeric nutrient criteria for rivers and streams. A complete review of EPA’s guidance indicates that the methods fall short of the Agency’s objectives to "provide scientifically defensible technical guidance to assist States and Tribes in developing regionally based numeric nutrient criteria." Generally, AMSA’s comments fault EPA’s approach because its variety of methods for assigning criteria "did not represent genuine flexibility but rather expediency," and do not make a distinction between enrichment and impairment of uses. AMSA believes that EPA’s nutrient guidance could result needlessly identifying rivers or river segments across the country as "impaired" based simply on nutrient concentration or chlorophyll levels.

AMSA is not alone in its concern regarding the regulatory consequences of the EPA’s criteria development approach. An analysis done by the New England Interstate Water Pollution Control Commission (NEIWPCC) indicate that from 50-75% of the lakes in that region would be in violation of the proposed default criteria while only a small proportion of these lakes currently fail to meet their designated uses. Using available data in the New England region, NEIWPCC determined, using EPA’s approach, that lake phosphorus criteria would have to be set at approximately 6.5 to 11.7 ug/l, nitrogen criteria from 213 to 445 ug/l, and chlorophyll " criteria at 2.3 to 4.8 ug/l. AMSA referenced the NEIWPCC study to highlight its concerns with the guidance.

Under EPA’s 1998 Nutrient Strategy states are required to develop water quality criteria for nitrogen and phosphorus by 2003 (though there is a possibility this deadline may be extended to 2005). As the next step, AMSA has requested to meet with EPA representatives to further deliberate on the issues. The guidance is available online at http://www.EPA.gov/OST/standards/nutrient.cfml and AMSA’s comments are available at http://www.amsa-cleanwater.org.

 

AMSA Comments on Draft Strategy to Reduce Hypoxia in Gulf of Mexico
On September 10, AMSA submitted comments on the Mississippi River/Gulf of Mexico Watershed Nutrient Task Force’s July 11, 2000 Draft Plan of Action for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico. In its comments, AMSA noted that he hypoxia in the Gulf of Mexico is a serious and challenging problem which must be addressed, and supported the development of a plan to address hypoxia in the Gulf. However, AMSA has significant concerns with the Task Force’s draft Action Plan which relies primarily on subjective judgements regarding: 1) the impacts of nutrient loadings in the upper reaches of the Basin on the hypoxia in the Gulf of Mexico; 2) the ability of the basin to implement nonpoint source reductions without a predetermined plan for insuring their implementation; 3) the effects of other variables such as flood control initiatives, freshwater flows, suspended sediment, and other oxygen demanding substances have on controlling the degree of hypoxia in the Gulf.

AMSA noted that the Strategy does not have the quantitative assessments to demonstrate what is driving the hypoxia, nor the level of controls needed to effectively reduce the hypoxia to natural or acceptable levels. AMSA is also concerned over the emphasis placed in the Strategy on municipal point sources (POTWs) in light of the fact that they constitute a very small percentage of the nutrient loads in the Mississippi Basin and that the nutrient reductions are more costly than controls on non-point sources (NPS). AMSA emphasized that the success of the Gulf Strategy relies on achieving load reductions from nonpoint sources, because without those reductions, additional efforts to control point sources will be futile. AMSA also called on the Task Force to verify the effectiveness of NPS controls before widespread requirements to install nutrient removal at POTWs are implemented in the basin.

A copy of the July 11 draft Action Plan can be found at http://www.epa.gov/msbasin. The next meeting of the Task Force is October 11 in Baton Rouge, Louisiana, where the Task Force will consider the comments received on the draft Action Plan.

 

USGS Water Quality Data Warehouse
A new online data warehouse of 6.5 million records has recently been made available to the public, according to the U.S. Geological Survey (USGS). The data were collected by the USGS National Water-Quality Assessment (NAWQA) Program beginning in 1991 in 36 basins around the country. The warehouse includes data from surface and ground water sources, not from finished tap water. The data include about 15,000 pesticide and VOC samples and about 26,000 nutrient samples collected from the water column, as well as about 1,200 samples from bed sediment and aquatic animal tissue. Most pesticide, sediment and tissue samples were analyzed for over 40 different compounds at the USGS National Water Quality Laboratory in Denver, Colo. To log on to the USGS Water Quality Data Warehouse, go to http://water.usgs.gov/nawqa/data.

 

AMSA Urges EPA to Implement Consistent Approach on Wet Weather Blending
On September 19, the National Office sent a letter to Assistant Administrator Chuck Fox seeking EPA’s assistance in resolving a growing dispute over the practice of "blending" peak wet weather flows. Since the advent of the Clean Water Act, the U.S. Environmental Protection Agency (EPA) has authorized numerous municipal wastewater treatment systems to meet their secondary treatment standards by blending partially-treated, disinfected wet weather flows with fully treated effluent prior to discharge. This practice enabled POTWs to meet secondary treatment standards, maximize flow to the treatment plant, and, at the same time, protect sensitive biological treatment systems of the plant from being destroyed or washed out by excessive wet weather flows.

AMSA understands that several EPA Regions and the Office of Enforcement & Compliance Assurance are now attempting to reverse the Agency’s position on blending by reinterpreting the bypass regulations to prohibit this practice. This reinterpretation is occurring despite the Office of Water’s demonstrated support for POTWs that blend. AMSA believes that any sudden change in policy would constitute an arbitrary regulatory and policy reversal, one that would render treatment costs unaffordable and would unnecessarily prohibit a practice that fully complies with the secondary treatment regulations. AMSA urged Fox to take any necessary steps to advise all EPA Regions that blending is an authorized treatment practice. AMSA also offered its technical expertise in the collection of pertinent information to support OWM’s research.

At an October 6 meeting on Capitol Hill with EPA officials and the congressional delegations of two states, municipal officials and AMSA urged the Agency to allow POTWs to continue the "blending" practice. During the meeting, EPA noted that "NPDES authorities have considerable flexibility" to address different flow scenarios through the permitting process. Due to the costs involved, the congressional delegations stressed that a change in EPA policy would necessitate the standard rulemaking procedure with thorough proposal and comment stages. EPA officials said that their evaluation would conclude in three months. AMSA will continue to play an active role in ongoing discussions on this issue and provide frequent updates to the membership through Fax Alerts, Regulatory Alerts and Regulatory Updates. For further information, contact Greg Schaner at 202/296-9836.

 

EPA Expected to Release Proposed SSO Rules
On October 6, the White House Office of Management & Budget cleared EPA to propose its sweeping sanitary sewer overflow (SSO) regulations. The proposal is expected to be signed as soon as the week of October 9. The National Office is preparing to engage its SSO Workgroup, AMSA members and leadership in a thorough review and response to the proposal. As soon as the proposal is available, the National Office will issue a Regulatory Alert.

 

AMSA Wet Weather Committee to Assist GAO in National Cost Assessment
Congress has asked the U.S. General Accounting Office (GAO) to conduct a comprehensive study of the impacts of urban wet weather flows on water quality, as well as the costs and benefits of municipal wet weather control efforts. GAO, the investigative arm of Congress that evaluates federal agency performance and provides legislators with funding and policy assessments, has indicated that the ultimate objective of this study is to provide the justification and potential mechanisms for closing the nation’s clean water funding gap. The GAO has asked AMSA for its assistance in identifying case examples and any anecdotal information that might help them prepare this study, which is expected to be released in April 2001. As the issue of clean water funding has assumed center stage for AMSA’s legislative agenda, the Association’s collective ability to provide the GAO with compelling data on urban wet weather control efforts may be of extremely beneficial value.

In response to the GAO’s request, AMSA distributed on September 20, a questionnaire to the members of the Wet Weather Issues Committee requesting agency-specific information that may be useful for the report. For further information, contact Greg Schaner, AMSA at 202/296-9836. 

 

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