REGULATORY UPDATE
JULY 1998Since the AMSA Board of Directors Meeting in May 1998 in Washington, DC, AMSA’s regulatory initiatives have focused on tracking developments within the Environmental Protection Agency, technical programs for the membership, and providing comments to notices in the Federal Register and other EPA guidance/policy. The following information will bring you up-to-date on the status of various regulatory and technical issues affecting the AMSA membership.
Air Quality Issues
EPA TO DEVELOP WORK PLAN FOR SECTION 129; REQUESTS DIOXIN DATA FROM AMSA
On January 14, 1997, EPA published a notice of additional information (NAI) under Section 129 of the Clean Air Act (CAA) establishing new source performance standards and emission guidelines for new and existing solid waste incineration units including units that incinerate municipal sewage sludge. During 1997, AMSA worked closely with EPA to encourage them to consider AMSA’s opposition to regulate sewage sludge incinerators (SSIs) under Section 129. In response to the NAI, EPA has gathered and reviewed data on SSIs from the permit compliance system (PCS) database, information from the regions on Part 503 permits, source test data from 97 incinerators and, along with AMSA representatives, visited several test sites in PA and NJ to assess various controls in place. EPA stated that it will most likely use a technology approach to establish emission levels based on performance of the top 12 percent of control devices in place to determine the maximum achievable control technology (MACT) standard for SSIs under Section 129. Some form of integration with the risk-based approach of Part 503 will be conducted later for each of the eleven pollutants under section 129. EPA’s Offices of Air and Water held an internal meeting on March 18, 1998 to finalize plans for addressing SSIs. EPA has indicated that it has reached internal agreement on what the MACT standards would be for fluidized bed incinerators but have not yet determined similar standards for multiple health incinerators. EPA, AMSA’s Incineration Workgroup and the National Office plan to meet in early summer to review the Agency’s workplan based on data gathering efforts, potential MACT standards, training and certification requirements, and potential sites where EPA plans to conduct additional incinerator emissions testing later this year. In May, AMSA forwarded to EPA the sewage sludge incinerator dioxin data that was solicited from several AMSA member agencies as part of the 1994 Dioxin Assessment Peer Review.
EPA TO RE-PROPOSE POTW MACT STANDARD
In late November, 1997, AMSA’s National Office received from EPA’s Office of Air and Radiation, a copy of the draft POTW MACT Standard. Following review of the draft, in December 1997, AMSA’s Air Quality Committee Leadership and the National Office compiled an analysis outlining AMSA’s comments and concerns and submitted it to EPA’s Emissions Standards Division. While most existing facilities will not be impacted by the regulation, AMSA indicated that the proposed approach is inappropriate because: 1) it would set a precedent with state regulators on how to estimate POTW's emissions; and 2) some POTWs previously not identified as major sources, but later categorized as such based upon the conservative Water8 methodology, would be subject to all current and possible future federal and state regulatory requirements. The draft regulation would require POTWs identified as "major sources" to install covers on treatment units up to the primary clarifiers. However, AMSA believes no environmental benefits would be achieved by covering the treatment units at POTWs newly identified as major sources using the highly conservative methodology. AMSA would primarily like the draft to offer more representative and realistic emission estimation methods, including direct measurement of the air emissions, and peer reviewed emission factors and fate transport models.
In March, EPA withdrew their proposed rule for POTW MACT Standards, which was undergoing Office of Management & Budget review. In light of recent information provided by AMSA, EPA’s Office of Air Quality Planning and Standards planned to resubmit a new rule following revisions to the current proposal. EPA has indicated that the MACT floor for existing POTWs will not have any controls, while the new source MACT will likely include capture and vent to carbon adsorption for the headworks. On June 26, EPA resubmitted the proposed rule to OMB for approval. A notice in the Federal Register is expected sometime in mid-summer; a 60-day comment period is expected.
AMSA SUBMITS REFORMATTED DIGESTER GAS DATA TO EPA
EPA is developing National Emission Standards for Hazardous Air Pollutants (NESHAP) and New Source Performance Standards under the Industrial Combustion Coordinated Rulemaking (ICCR) process using an advisory committee consisting of a Coordinating Committee and various workgroups. The ICCR process includes several types of combustion devices operated by AMSA members which utilize digester gas including boilers, Reciprocating Internal Combustion Engines (RICES), Combustion Turbines (CTs), and very likely waste gas flares (under the heading of incineration). Members of AMSA’s Air Quality Committee are represented on the Coordinating Committee and work groups for boilers, RICES, CTs, incinerators and the source testing workgroup. A proposed rulemaking is anticipated by November 2000.
In the summer of 1997, EPA conducted a limited data gathering survey to support development of regulations for combustion devices. The basis for control of combustion devices will be the average of the top performing 12% of the sources within the category. Due to concerns that the combustion devices operating at POTWs will be considered with all similar combustion categories, AMSA’s Board of Directors approved funding support to conduct a survey of the membership to collect both data inventory and emission data for combustion devices. A major concern was that combustion control devices applicable for burning of natural gas may get applied to the combustion of digester gas, which past experience at several POTWs has shown to be either technically infeasible or not cost-effective. The National Office distributed the survey forms to the membership via Regulatory Alerts RA97-12 and RA97-12a. The results are designed to facilitate AMSA’s efforts in addressing potential MACT standards. The data, which were submitted to EPA in late September 1997, indicated that very few AMSA member agencies have conducted emissions testing for hazardous air pollutants (HAPs) and criteria pollutants and will most likely need to conduct such source testing in the future if required by EPA. Due to data compatibility problems with EPA’s database, in May, AMSA’s Board of Directors approved the use of $5,000 in Technical Action Funds to have the survey consultant reformat the AMSA data to meet EPA’s requirements as it evaluates MACT controls for engines fueled by digester gas. The reformatted data was submitted to EPA in June. The next meeting of the ICCR FACA is scheduled for July 28-29 in Long Beach, California.
AMSA HOSTS RMP WORKSHOP FOR POTWS BASED ON MODEL GUIDANCE
In response to EPA’s June 20, 1996 final regulations which address requirements under Clean Air Act Section 112(r)(7), and require the owner or operator of stationary sources at which a regulated substance is present to prepare and implement a risk management plan (RMP), AMSA is working cooperatively with EPA to develop a model RMP for wastewater utilities. The interim final draft of the document is currently undergoing peer review and will be pilot tested at several member agencies across the country, with completion later this summer. The model RMP served as the backbone for a two-day RMP Implementation Workshop for POTWs, held June 25-26 in Milwaukee, WI. Over 100 people attended the successful workshop that focused on which POTWs are subject to the rule and provided those POTWs with implementation guidance for the chemical accident prevention rule. The workshop also covered applicable compliance guidance for POTWs who are subject under state law to implement OSHA’s Chemical Process Safety Management Standard, which had a 1995 compliance date.
Biosolids Management Issues
NRC PUBLISHES PLAN TO CONDUCT JOINT NRC/EPA SURVEY DURING SUMMER 1998
The NRC published a notice in the December 2, 1997 Federal Register outlining its plans to conduct a joint NRC/EPA survey during the summer of 1998 to characterize radioactive materials in sewage sludge/ash at POTWs and the NRC agreement states. For the survey, NRC and EPA will identify approximately 300 POTWs for sampling based on questionnaires distributed to 600 POTWs associated with NRC licensees. The objectives of the joint survey are to: 1) obtain national estimates of high probability occurrences of elevated levels of radioactive materials in biosolids and ash at POTWs; 2) estimate the extent to which radioactive contamination comes from either NRC/agreement state licensees or naturally occurring radioactivity; and 3) support rulemaking decisions by NRC and EPA. The information will be used in developing joint NRC/EPA guidance for POTWs to determine sources of radioactive materials, describe sampling and analysis procedures, and advise whether a response is needed to the presence of radioactive material in biosolids.
During several meetings with EPA and NRC in 1997, AMSA continued to stress the need for a peer review group or steering committee, to include AMSA, to oversee and monitor the testing and results, and emphasized concerns with NRC’s lack of information regarding its licensees and what is currently discharged into sanitary sewers. Potential concerns with adverse public reaction to any levels of radioactivity in biosolids, in the absence of a background exposure comparison table and the impact of such findings on future land application practices were also voiced. NRC and EPA were receptive to the creation of a steering committee which will provide opportunities to ensure that AMSA’s concerns are addressed. The National Office met with NRC’s Inspector General’s Office in February 1998, to discuss NRC’s cooperation in addressing AMSA’s concerns with the survey and NRC’s efforts to implement the General Accounting Office’s May 1994 recommendations. The Office of Management and Budget recently contacted the National Office regarding their review of our comment letter. OMB is currently discussing with EPA and NRC the best mechanism for all parties to proceed with the survey. Based on AMSA’s January 1998 comments, OMB has obtained an agreement from NRC to allow two AMSA representatives to serve on the joint Survey Committee which includes NRC, EPA and state representatives. Ray Kearney, AMSA Biosolids Management Committee Chair, from the City of Los Angeles, and Tom Lenhart, Northeast Ohio Regional Sewer District, will represent AMSA on the committee. Based on the Survey Committee’s initial conference call, held in June, AMSA is encouraged by some of the actions NRC and EPA plan to implement based on AMSA’s recommendations. In May, AMSA’s Board of Directors approved $15,000 to study comparative risk assessment of radionuclide exposure from biosolids. Questionnaires are expected to be distributed to the 600 POTWs by late summer/early fall 1998.
NATIONAL BIOSOLIDS PARTNERSHIP MEETS IN MAY
During the September 1997 Board of Directors meeting, approval was given for Association participation in the National Biosolids Partnership and selected Board member Bob Hite with Denver Metro Wastewater Reclamation District, to serve on the Management Group, comprised of AMSA, WEF, EPA and USDA. A Steering Committee, to be chaired by AMSA’s Dr. Cecil Lue-Hing, was approved at the January 14 Partnership meeting to facilitate the selection of an Advisory Group.
The Management Group and Steering Committee met in May during AMSA’s National Environmental Policy Forum. Development of a comprehensive framework for a Code of Management Practices was discussed at length. The Code is designed to: establish a series of broad goals and commitments that would govern the management of biosolids programs; provide a series of technical and operational practices that determine how facilities go about achieving goals and objectives; develop a voluntary national standard; and, include third party oversight to help ensure the Code’s acceptance in the public arena. The next meeting of the Steering Committee is scheduled for July 10-11 during WEF’s Biosolids Speciality Conference in Bellevue, Washington. The Advisory Committee will also meet in Bellevue to help in the development of the code and review other priority projects approved by the Partnership.
Financing & Management Issues
AMSA RELEASES COMPETITIVENESS HANDBOOK AND CO-SPONSORS WORKSHOPS
AMSA and the Association of Metropolitan Water Agencies (AMWA) have joined to produce a new publication, Thinking, Getting & Staying Competitive: A Public Sector Handbook. The Handbook serves as a companion piece to AMSA’s previously released publications, "Evaluating Privatization: An AMSA Checklist," and "Managed Competition: Developing and Responding to RFQs & RFPs." The Handbook illustrates a "how to" approach to becoming competitive by highlighting proven strategies for becoming competitive and profiling several utilities that have developed these strategies.
AMSA and AMWA are sponsoring several "how to" workshops based on the publication. The workshops feature a mix of lectures and breakout sessions to teach and then reinforce competitive concepts, including teamwork, labor/management relations and effective use of technology. To gain maximum benefits, member agencies are encouraged to send multi-level staff teams to the workshops. The remaining workshops are scheduled for: Sept. 15-16, Chicago; Sept. 17-18, Kansas City, MO; Nov. 17-18, Atlanta, GA; Nov. 19-20, Houston, TX.
AMSA PREPARING FOR 1999 AMSA FINANCIAL SURVEY
AMSA’s Financing and Management Committee has completed a review of the Association’s Financial Survey form, incorporating information on staffing and salaries, as well as including questions on limited benchmarking information. The Committee is planning to request Board funding approval to hire a consultant to perform the 1999 survey and follow-up analysis. Requests for proposals will be solicited in late July, and a formal technical action fund request will be forwarded to the Board during the September leadership meeting.
AMSA/AMWA JOIN FORCES TO PUBLISH SOURCEGUIDE
MSA and the Association of Metropolitan Water Agencies (AMWA) will collaborate on the upcoming publication of the fourth in a series of AMSA management publications, a SourceGuide. The SourceGuide will provide information and examples of innovative and successful programs underway at numerous utilities. Names of contacts and phone numbers will be included to make more detailed information readily accessible and facilitate communication regarding competitiveness methods. The SourceGuide is scheduled for release in February 1999 and will be available in both print and on AMSA’s web site, http://www.amsa-cleanwater.org
Pretreatment & Hazardous Waste Issues
AMSA/EPA EFFORTS TO STREAMLINE PRETREATMENT PROGRAM REQUIREMENTS
In efforts to reduce the current burden of the pretreatment program on POTWs and industrial users, EPA issued, in May 1997, a draft pretreatment program streamlining proposal outlining changes to thirteen specific issues, including significant noncompliance (SNC). While supportive of most of the proposed changes, AMSA had major concerns with EPA’s proposed modification of SNC criteria. Based on discussions between various stakeholders, AMSA developed proposed regulatory language under 40 CFR 403 which was sent to EPA for consideration in the preamble to the pretreatment streamlining proposal. The notice of proposed rulemakng, NPRM is currently undergoing internal EPA and workgroup review and is expected in the Federal Register in September 1998. It is anticipated that the NPRM will be similar in content to the 1997 draft.
On June 23, as part of pretreatment program reinvention and streamlining efforts, EPA proposed a pilot program that would allow as many as 15 POTWs to experiment with innovative strategies and new technologies for implementing their CWA pretreatment programs under Project XL. EPA hopes the pilot projects will provide innovative approaches to pretreatment program streamlining, that can be used to reform the national pretreatment program. They are particularly interested in whether certain indirect discharge permitting reforms are appropriate or if EPA should pursue reforms that allow POTWs to issue general permits. Copies of the proposal were distributed to the membership via Regulatory Alert, RA 98-11.
GAO QUERIES AMSA ON PROPOSED EFFLUENT GUIDELINES FOR INDUSTRIAL LAUNDRIES
In December 1997, EPA published proposed effluent limitation guidelines for the industrial laundry industry that would limit the discharge pollutants into U.S. waters and POTWs from existing and new industrial laundries by establishing pretreatment standards for existing and new sources. These standards are based on a determination of degree which pollutants through or interfere with POTWs; the best available technology economically achievable or best available technology. On March 17, 1998, AMSA submitted comments to EPA stressing concerns regarding EPA’s proposal which is based on extremely limited information and technology, and AMSA’s belief that the guidelines for industrial laundries are technically flawed. Based on comments received from over 20 agencies, interference or pass through or compromised biosolids quality from industrial laundry discharges is not currently a problem. AMSA is also concerned with the data used by EPA for determining removal rate in its pass through analysis, reliance on the use of one data set for selecting chemical precipitation alone as the basis for the standard for industrial laundries and selection of unapproved test methods.
The General Accounting Office (GAO) is currently conducting an evaluation of EPA’s proposed effluent guidelines for industrial laundries at the request of Representative Bud Schuster (R-PA), based on concerns raised by the industry to the proposed guidelines. GAO representatives met with the AMSA National Office and the Pretreatment & Hazardous Waste Committee Leadership in June to discuss our comments.
AMSA/SILVER COUNCIL CONTINUE WORK ON DEMONSTRATION PROJECT ON ALTERNATIVE PRETREATMENT CONTROL MECHANISMS PROJECT
AMSA, the Silver Council and EPA are currently working on a cooperative agreement demonstration project using the photo processing industry as a model to evaluate the use of alternative compliance mechanisms in lieu of numerical effluent limitations, as a means of controlling wastewater discharges. The AMSA/Silver Council "Code of Management Practice (CMP) for Silver Dischargers" will be used as the model approach for controlling silver discharges. The project contractors, Black & Veatch and Apogee Research, are currently performing sampling at each of the pilot agencies. AMSA and the Silver Council met in March to discuss updates to the sampling workplan. The project steering committee met in June to discuss coordination of project efforts. Sampling is currently underway at the pilot cities. All of the cities have collected data on demographics of the photo processors and will submit the data to the project contractors by September 30, 1998. Influent sampling has been initiated and will continue through March 1999. The project steering committee plans to conduct quarterly conference calls to review the status of work. The next meeting of the steering committee is scheduled for January 1999. A revised POTW Guidance Manual for the CMP for Silver Dischargers is expected later this summer and will include a chapter on pollution prevention. The revised manual will be distributed to the attendees of the 1997 AMSA/EPA Pretreatment Coordinators’ Workshop.
AMSA REPRESENTED ON NACEPT TOXICS DATA REPORTING COMMITTEE
Bob Steidel, Environmental Manager for the Hopewell Regional Wastewater Treatment Facility in Hopewell, VA, was recently appointed to the Toxics Data Reporting (TDR) Committee for the National Advisory Council for Environmental Policy & Technology (NACEPT). He is the only POTW representative on the newly formed committee which is comprised of members representing industry, public interest groups, academia, and local, state, and federal government. The committee will address many of AMSA’s recommendations made in the May 1997 report, "Improving Toxic Release Inventory Accuracy" as well as the formatting and nomenclature of Form R; opportunities to ease the paperwork burden in Form R and Form A; and, clarification of the elements in Form R and EPA’s presentation of the data in public information documents. The committee met in May and have not yet reached consensus. The 1996 TRI data, released in June 1998, did not incorporate any of the proposed actions under development by the committee due to the lack of consensus within the committee on key issues.
AMSA/EPA MEET TO DEVELOP DRAFT AGENDA FOR UPCOMING PRETREATMENT WORKSHOP
Representatives from EPA’s Office of Wastewater Management met with AMSA in May during the National Environmental Policy Forum to develop a draft agenda for the 1998 AMSA/EPA Pretreatment Coordinators’ Workshop, scheduled for October 27-30 at the Hyatt Regency Crown Center in Kansas City, Missouri. The two-and-a-half day workshop will feature updates from key EPA representatives on various EPA initiatives, and presentations on pollution prevention, mercury issues, environmental crimes, third party lawsuits and reinvention. Regional breakout sessions and breakouts focused on mercury will round out the agenda. The National Office is planning to distribute workshop information to the membership and EPA in late July.
AMSA EXPRESSES CONCERNS WITH EPA’S MERCURY STRATEGY
On April 10, AMSA submitted a letter to Michael Cook, Director of EPA’s Office of Wastewater Management, and Tudor Davies, Director of EPA’s Office of Science and Technology to express the membership’s concerns regarding mercury. At AMSA's Winter Technical Conference in February, the issue of mercury was discussed at length, and the Chairs of AMSA's Pretreatment and Hazardous Waste and Water Quality Committees were directed to outline our thoughts and concerns to the Agency by letter. The letter outlined four general aspects of EPA’s recently proposed initiatives which AMSA strongly urges the Agency to consider. These include: 1) it is imperative that the environmental problems and sources of mercury (both anthropogenic and natural sources) be properly documented as well as the relative significance of all sources as a first step to any control initiatives; 2) any necessary source controls should be targeted in areas which, if controlled, will result in significant improvements in environmental exposures to mercury; 3) EPA must use its existing programs such as TSCA and FIFRA to insure that products for home and commercial use are free from both active mercurial agents and mercury contamination; and, 4) there must be programs in place which shield dischargers from legal liabilities as long as they are actively pursuing reasonable and cost-effective control and abatement programs. AMSA indicated its willingness to meet and work with the Agency to accomplish these goals. On June 29, AMSA received a response letter from Tudor Davies, that expressed the Agency’s willingness to meet with AMSA on associated mercury issues. AMSA will create a multi-media workgroup within the Regulatory Policy Committee to address EPA’s proposed mercury strategy and its potential impact on POTWs. The chairs of the Air Quality, Water Quality, Pretreatment, and Biosolids Committees have been requested to recommend individuals from their committees to serve on this workgroup.
Water Quality Issues
WATER QUALITY STANDARDS REGULATION ANPRM
EPA is seeking through an advance notice of proposed rulemaking (ANPRM), views and recommendations on possible revisions to the Water Quality Standards regulation. The proposal is expected to be released in June 1999. 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. AMSA has solicited the Water Quality Committee to participate in review teams, each focusing on one of the proposal’s five main issue themes: anti-degradation, designated uses, refined criteria, mixing zones, and independent application. On June 25, 1998, EPA Assistant Administrator Bob Perciasepe signed the ANPRM. The ANPRM was distributed to the membership via Regulatory Alert, with comments due to the National Office by October 2, 1998. AMSA, with extensive member agency input, plans to file comments on the ANPRM within the 180-day comment period and will ensure that AMSA members are represented during three public meetings on the ANPRM, the first to be held in Philadelphia, PA on August 27-28. Preliminary issues and concerns based on the ANPRM will be highlighted at AMSA’s Summer Conference. The Water Quality Committee and review teams will conduct a preliminary review of the ANPRM to assist AMSA members that will serve on the expert panels at the public meetings.
FRESHWATER AMMONIA CRITERIA REVISIONS
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. Although EPA had assured AMSA that an opportunity for full public review and comment would be sought after a technical peer review was completed, EPA plans to publish the document as an interim final rule in early summer 1998. On May 28, 1998, AMSA transmitted a letter to EPA recommending that the Agency proceed with its original commitment to solicit public comment on the proposed revisions of the ammonia criteria document through the proposed rule process and allow adequate time for public review and comment.
WHOLE EFFLUENT TOXICITY ISSUES
Two recently released surveys concerning WET have highlighted the need for consistency and resolution of technical and permitting issues. In the "WET Method Blank Study," members of WESTCAS and AMSA participated in a tightly controlled and focused study that assessed the ability of the WET test to reliably characterize known non-toxic samples as toxic or non-toxic. The study results showed a 40% rate of false positives, and helped to facilitate a breakthrough in WESTCAS’s litigation settlement negotiations. Results from the WERF-sponsored WET implementation survey, "Whole Effluent Toxicity Program: Evaluation of Practices and Implementation," indicate that there are inconsistencies from jurisdiction to jurisdiction in the implementation of WET, and multiple examples show that EPA guidelines and policy are not being followed. The WERF study surveyed 63 regulatory agencies and over 1,000 POTW facilities. The study also recommended that EPA establish a technical advisory group for WET. AMSA has also been pursuing future WET training opportunities for POTW personnel through the Society of Environmental Toxicology and Chemistry (SETAC), which has been under contract with EPA to provide WET training. AMSA’s Water Quality Committee is preparing a proposal for Board approval to conduct a WET training workshop for AMSA members sometime in early to mid-1999. Also, AMSA is continuing its discussions with EPA concerning the issues of "reasonable potential" and statistical methodologies.
MONITORING COUNCIL TASKED WITH SEVERAL KEY ACTION ITEMS IN CLEAN WATER PLAN
The National Water Quality Monitoring Council was formed in May 1997 to gather information, conduct research, analyze relevant issues and facts, and draft proposed position papers and/or recommendations for deliberation by the ACWI. AMSA’s Water Quality Committee Chair, Norm LeBlanc represents AMSA on the National Council, which is composed of a variety of stakeholder interests. The Administration’s recent Clean Water Action plan includes several key action items, which call for action by the Council. Some of the key action items include: 1) provide recommendations to EPA to standardize monitoring and reporting by point source dischargers to support water quality, and watershed management information needs, by 1999; 2) Compare sampling and laboratory methods and protocols leading to performance-based acceptable methods and establish consistent use of biological metrics by the end of 2000; 3) publish a report describing the current state of monitoring and models for assessing sources and impacts of polluted runoff, and identifying critical gaps in need of monitoring and modeling. AMSA’s Water Quality Committee will be provided with relevant draft recommendations and reports for review. The National Water Quality Monitoring Council has held three meetings in full council, plus numerous workgroup meetings. The Council is currently developing a workplan to guide its activities.
FWS AND NOAA CONCLUDE THAT EPA WATER QUALITY CRITERIA INADEQUATE TO PROTECT ENDANGERED SPECIES
On August 5, 1997, EPA published a proposed rule for the promulgation of water quality standards for the state of California. The proposal established numeric criteria for priority toxic pollutants, and reflected the most up-to-date technical and scientific data. EPA proposed the water quality standards after a 1994 federal court ruling overturned California’s water quality standards. Under the Endangered Species Act, the U.S. Fish and Wildlife Service (FWS), and the National Marine Fisheries Service (NMFS), are to be consulted if a federal action, such as EPA’s promulgation of water quality standards, may adversely affect endangered or threatened species. From February 1994 to October 1997, EPA, FWS and NOAA had informally attempted to resolve their differences on the proposed rule through several meetings and teleconferences. Unable to resolve their differences, the agencies initiated formal consultation in November 1997.
On April 10, 1998, the FWS and NMFS issued a draft biological opinion on the California Toxics Rule (CTR) which includes findings that the proposed criteria will jeopardize the continued existence of 20 species and includes recommended reasonable and prudent alternatives be undertaken to remove the jeopardizing effects of the proposed action. In the opinion, the FWS and NMFS, questioned the adequacy of : 1) proposed acute and chronic selenium criteria; 2) proposed aquatic and human health criteria for mercury; 3) proposed criteria for pentachlorophenol; 4) factors used in the proposed formula based metals criteria (i.e, water effect ratio, total-to-dissolved conversion factors, and hardness dependency), and; 5) the use of translators to convert dissolved criteria into total-recoverable permit limitations. The FWS and NMFS cite a significant number of published scientific literature in establishing a basis for the jeopardy opinion. Among the reasonable and prudent alternatives which have been recommended to EPA include: 1) reducing the chronic selenium criteria from 5 ug/l to 2 ug/l; 2) promulgating a total mercury criterion of 2 ng/l within the range of 8 affected species, 3) deferring promulgation of metals criteria on a dissolved basis, and 4) deferring approval of site-specific water effect ratios. In addition to these recommendations, FWS and NMFS also recommend that EPA promulgate revised criteria based on bioaccumulative effects of selenium and mercury by June 2000 and perform additional review of metals formula criteria methodologies to ensure species are protected. The draft opinion may have national implications as the issue has been raised to senior water officials in EPA’s Headquarters, and could ripple throughout the regional offices of EPA, FWS, and NMFS.
EPA RELEASES DRAFT WATER QUALITY CRITERIA AND STANDARDS PLAN
On June 22, EPA released a plan for enhancing and improving the water quality criteria and standards program titled, "Water Quality Criteria and Standards Plan - Priorities for the Future." During AMSA’s May 16-20 National Environmental Policy Forum, EPA’s Office of Science and Technology released an advance copy of a draft plan for working together with states and tribes to enhance and improve the nation’s water quality criteria and standards program. The plan describes seven new criteria and standards program initiatives that EPA, states, and tribes will embark on over the next decade. According to the plan, the Office of Water will emphasize and focus on the following priority areas for the criteria and standards program over the next decade including: 1) developing nutrient criteria and assessment methods; 2) developing criteria for microbial pathogens; 3) completing the development of biocriteria as an improved basis for aquatic life protection; 4) maintaining and strengthening the existing ambient water quality criteria for water and sediments; 5) evaluating possible criteria initiatives for excessive sedimentation, flow alterations, and wildlife; 6) developing improved water quality modeling tools to better translate water quality standards into implementable control strategies; and 7) assist States in implementing criteria as part of water quality standards.
EPA PLANNING TO RELEASE NATIONAL NUTRIENT STRATEGY
To address water quality problems associated with nutrient over-enrichment, EPA has been directed by the President’s Clean Water Action Plan (released in February 1998) to implement a criteria system for nitrogen and phosphorus runoff for lakes, rivers, and estuaries by the year 2000. To meet this accelerated time frame, EPA is developing a national strategy which focuses on the development of waterbody-type guidance, and region-specific nutrient criteria. During AMSA’s National Environmental Policy Forum, EPA released a draft version of the strategy and presented its plans to imminently release the national nutrient strategy with six key elements: 1) use of a regional and waterbody-type approach for the development of nutrient criteria; 2) development of waterbody-type technical guidance documents that will serve as "users manuals" for assessing trophic state and developing region-specific nutrient criteria to control over-enrichment; 3) establishment of an EPA National Nutrient Team with Regional Nutrient Coordinators; 4) establishment of ecoregional nutrient criteria (target ranges) for nitrogen, phosphorus; 5) require states use guidance or default criteria to establish numeric nutrient standards by 2003, where nutrient data is available; and, 6) monitoring and evaluation of nutrient management programs as they are implemented. AMSA plans to review the strategy when finalized.
EPA PROPOSES NEW ANALYTICAL METHOD FOR MERCURY
On May 26, 1998, EPA published a proposed new analytical method for mercury, EPA Method 1631. EPA Method 1631 is approximately 200 times more sensitive than currently approved methods for determination of mercury and requires clean sampling and laboratory techniques to preclude contamination at the low levels necessary for mercury determinations. EPA has promulgated water quality criteria for mercury at 12 parts-per-trillion (ppt) in the National Toxics Rule, and published guidance criteria for mercury at 1.8 ppt in the Water Quality Guidance for the Great Lakes System. The most sensitive currently approved methods for mercury are capable of achieving a quantitation level of 200 ng/L (parts-per-trillion; ppt). Because of the ubiquitous nature of mercury, the new method is expected to pose compliance challenges to many dischargers. AMSA’s Water Quality Committee is reviewing the proposed analytical method.
Watershed Management Issues
TMDL ADVISORY COMMITTEE DISCUSSIONS
EPA’s Federal Advisory Committee (FACA) has completed discussions in efforts to craft recommendations concerning needed changes to the agency’s TMDL program implementation strategy, as well as TMDL-related policies, guidance, regulations and priorities. In mid-May, FACA members were solicited for signatures to the Committee’s final report. While Cheryl Creson, the AMSA representative on the Committee, signed the final report based on the overall progress the Committee has made in developing recommendations to EPA; an accompanying letter highlighted the continuing municipal concerns regarding "enforceability" and the need to address the lack of enforceable controls on nonpoint sources of pollution. AMSA also plans to send a separate letter to EPA highlighting this issue once the report is finalized. EPA plans to propose revisions to its Total Maximum Daily Loads (TMDL) program regulations and accompanying guidance in November 1998 and will finalize these revisions in October 1999.
Wet Weather Issues
EPA COMMITS TO RECONVENE SSO FEDERAL ADVISORY COMMITTEE
On May 18, AMSA representatives met with Bob Perciasepe, EPA’s assistant administrator of the Office of Water and Steven Herman, assistant administrator of the Office of Enforcement and Compliance Assurance. The meeting was requested by AMSA and other municipal representatives of EPA’s SSO Federal Advisory Committee (FACA) to discuss concerns regarding the derailed FACA process and substantive issues relating to EPA’s recent draft SSO strategy "blueprint." AMSA called on EPA to commit to reconvening the FACA prior to the finalization of a national SSO strategy, and began a substantive dialogue with Perciasepe, Herman, and other high-level program and enforcement officials over concerns with liability defenses for unavoidable SSOs and the allowance of permitted wet weather facility discharges at less than secondary treatment. As a result of the meeting, EPA has committed to reconvening the FACA after completing its internal agency discussions, and working with AMSA to resolve remaining technical and legal issues. Also, on May 28, AMSA received a list of questions from Eric Schaeffer, Director, EPA’s Office of Regulatory Compliance regarding the development of a national sanitary sewer overflow policy. The questions were originally posed as part of Schaeffer’s comments during the "Regulatory Perspectives" panel session at AMSA’s May 16-20 National Environmental Policy Forum. EPA is still attempting to reach internal consensus on the development of a national SSO policy. Among the types of questions presented include: 1) how would AMSA define "unavoidable" as it relates to SSOs; 2) how would AMSA define "wet weather" in the context of SSOs; 3) how would AMSA define a "wet weather treatment system;" 4) how would wet weather facility discharges impact the attainment of water quality standards in the receiving streams; and 5) does AMSA have a legal theory for regulating discharges from separate systems differently from combined systems? Several other questions were also raised. On June 11, AMSA along with other members of the Committee’s municipal/operator caucus submitted draft responses to EPA’s questions and will follow up with a request for another meeting with high-level EPA officials.
EPA RELEASES MEMORANDUM ON THE STATUS OF CSO POLICY IMPLEMENTATION
On May 19, 1998, EPA issued a memorandum to Regions and States summarizing the status of national CSO implementation and identifying where increased efforts are necessary, including implementation of nine minimum controls, development of long-term control plans, and revision of water quality standards. In short, the memorandum states that only 52 percent of the CSO communities are currently implementing the nine minimum controls, and another 25 percent have not yet implemented the nine minimum controls, but are under an enforceable requirement to do so in the future. The memo further states that approximately 33 percent of CSO communities are moving ahead to implement long-term CSO controls and another 28 percent are subject to an enforceable requirement to develop a long-term CSO control plan. In addition, EPA also recognizes the need for evaluating the attainability of water quality standards during long-term CSO planning, and highlights its goal of achieving 100 percent permitting consistency with the CSO Policy for FY 1999. A copy of the memorandum was sent to AMSA members with CSO responsibilities and AMSA’s Wet Weather Issues Committee.
ENVIRONMENTAL APPEALS BOARD UPHOLDS EPA STORMWATER PERMITTING POLICY
In March 1997, the Arizona Center for Law in the Public Interest, which filed the request on behalf of the Defenders of Wildlife and the Sierra Club, challenged EPA’s interim stormwater permitting policy on numeric effluent limitations by requesting an evidentiary hearing regarding the issuance of the permits for five municipalities in Arizona. Also at issue, was whether EPA should be required to include whole effluent toxicity testing in these permits.
On May 21, 1998, EPA’s Environmental Appeals Board (EAB) denied a petition filed jointly by the Defenders of Wildlife and the Sierra Club seeking review of issues related to stormwater permits issued by EPA Region IX to the City of Tucson, Pima County, the City of Phoenix, the City of Mesa and the City of Tempe (all in the State of Arizona). AMSA participated in the proceedings as amici, along with the National Association of Flood and Stormwater Management Agencies, the National League of Cities, and the National Association of Counties. Two issues of particular interest to AMSA members were the petitioners insistence that these storm water permits contain: 1) numeric water quality-based effluent limits, and 2) whole effluent toxicity (WET) testing. These issues presented a direct challenge to EPA’s August 1996 Interim Stormwater Permitting Policy, which stipulates that the most appropriate form on effluent limitations in first- and second-round municipal stormwater permits are best management practices (BMPs). EPA’s May 21 decision was forwarded to AMSA members, via Legal Alert 98-3.
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