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Water Pollution
Draft Guidance on Testing for Toxicity Too Inflexible,
According to States, Industry
Draft guidance to establish a consistent program for measuring toxicity in
wastewater discharges is too prescriptive and does not afford states flexibility
to implement their existing programs, officials from state agencies and industry
groups said in comments to the Environmental Protection Agency.
EPA released draft guidance Dec. 28, 2004, intended to foster national
consistency in the whole effluent toxicity (WET) program as it pertains to
permitting, the agency said in a memo accompanying the draft (2 DEN A-1, 1/4/05
).
The guidance also seeks to restate the need to comply with National Pollutant
Discharge Elimination system WET regulations and to re-emphasize existing
guidance, policy, and regulations for the program, according to EPA.
Whole effluent toxicity is the aggregate measure of the toxicity of wastewater
discharges and its effect on aquatic organisms.
WET tests are used to determine the aggregate effect of all chemicals in a
particular discharge and are helpful in situations where numeric limits are not
available for certain types of chemicals. These tests often involve exposing
certain organisms to different concentrations of chemicals to assess at what
level the mixture becomes toxic. Critics of the tests say they produce too many
false positives to be used for setting permit limits for toxics.
Guidance or Regulation?
Mark Pifher, director of water quality control in the Colorado Department of
Health and Environment, told EPA the draft is not clear as to whether it is
guidance or will be implemented like a regulation with specific mandates that
states must follow in order to maintain their permitting authority.
"The guidance should contain in the beginning, and at appropriate points
throughout, statements that the document is guidance and that States have
flexibility in achieving the overall goal regarding toxicity control," said
Pifher, who is vice president of the Association of State and Interstate Water
Pollution Control Administrators. "Nationally, consistency should not be the
objective."
Fredric Andes, who heads the Federal Water Quality Coalition, which represents
industrial dischargers, agreed.
He said the draft guidance indicates on one hand that states have "substantial
discretion" in decisions regarding WET limits in permits, yet it also seems to
mandate "one rigid, inflexible approach to WET regulation."
"We do not support that approach, which differs from how most States are
currently addressing WET issues," he said. "The Agency itself concedes that its
new approach will lead to 'unnecessary' permit limits, and we believe that this
approach will actually lead to less progress in improving water quality as EPA,
the States and other stakeholders engage in prolonged rulemakings, numerous
permit appeals, and enforcement cases over minor issues that pose no water
quality impact."
More Flexibility With Narrative Criteria
States should be afforded more flexibility in making permit decisions based on
WET tests when narrative water quality criteria are used than when numeric
criteria are used, Andes said. Narrative criteria use descriptions, such as "no
toxics in toxic amounts," instead of numeric limits and may consider other
factors in determining whether the criteria are being met, he said.
"For instance, there is no reason that a State cannot, in making a WET decision
under narrative criteria ... consider whether biological data indicate that the
receiving waterbody (which currently receives the discharge on a continual
basis) is fully supportive of aquatic life," Andes said.
The test methods outlined by EPA were challenged in court because industrial
dischargers said they produced too many false positives and were not reliable
for permitting compliance purposes. However, the U.S. Court of Appeals for the
District of Columbia Circuit in December 2004 refused a request by the Edison
Electric Institute and other groups representing industrial dischargers to
review a final rule establishing new test methods issued by EPA in 2002 (Edison
Electric Institute v. EPA, 391 F.3d 1267, 59 ERC 1644 (D.C. Cir., 2004); 239 DEN
A-9, 12/14/04 ).
Environmental Groups Oppose 18-Month Delay
Environmental advocates criticized provisions in the draft that would allow
dischargers up to 18 more months to collect data if WET test results from an
initial few samples show a "reasonable potential" to exceed water quality
standards, thus prompting the need for WET limits in the permit. After the 18
months, the WET limits would become effective, unless evidence can be generated
to dispute the original findings of excess toxicity.
Michael Lozeau, an attorney who submitted comments on behalf of the Natural
Resources Defense Council, said the delay is not authorized under the Clean
Water Act and is not warranted.
"Where a discharger has failed to gather at least 10 samples, yet reasonable
potential exists based on the few gathered samples or other relevant
information, EPA should not reward their lack of monitoring with a formal
process for questioning the resulting WET limitations," Lozeau said. He added
that the WET regulations have been in place since the late 1980s, and
dischargers have had enough time to collect the data.
The 18-month delay, he said, is not intended as a way to help comply with the
WET limits, but rather to find information to undermine those limits.
The guidance should state that WET limits will be set, whether they are based on
10 test results, less than 10 test results, or other relevant information, he
said. The burden of proof rests with the discharger, Lozeau said, and the
discharger is responsible for collecting a sufficient amount of data.
Comments submitted by the Environmental Law and Policy Center agreed that the
18-month delay should not be allowed because it would encourage dischargers to
take the minimum number of samples required under the regulations and then seek
a delay if the results of those samples show the need to incorporate WET limits
into a permit.
"It is not USEPA's job to protect dischargers from the paucity of data they are
required to collect. It should be noted that some states, most notably Vermont,
are not requiring [publicly owned treatment works] to adhere to USEPA's
regulations that require a minimum of 4 WET tests, much less include WET
effluent limits in permits," Robert Moore, executive director of Environmental
Advocates of New York, and Albert Ettinger, senior attorney for the
Environmental Law and Policy Center, said in the comments. "For USEPA to propose
rewarding dischargers for conducting minimal testing (or in Vermont not even
conducting the minimum) by being granted up to 18 months to collect additional
data in the hopes that this will decrease the likelihood of needing a permit
limit is completely unacceptable."
Andes, of the Federal Water Quality Coalition, disagreed, saying 18 months is
not enough time to collect the addition information. After the 18-month period,
the WET limits will take effect, according to the proposal. The discharger would
have to gather the additional data, review it, and then submit a request for a
permit modification, Andes said. The state would have to review the request,
issue a draft permit, take public comment, and then issue the modification, all
steps that take too much time, he said.
"If the permit modifications have not been finalized within the 18 months,
antibacksliding restrictions would apply, and the dischargers could be unable to
have the WET limits removed, even though they have made adequate demonstrations
that the limits are not needed," Andes said. "To avoid that problem, longer
compliance schedules need to be provided."
National Consistency Overemphasized
Chris Hornback, director of regulatory affairs for the Association of
Metropolitan Sewerage Agencies, said he was concerned the agency's push for
national consistency in the WET program was too "restrictive" and would not
allow the use of "alternative, defensible approaches."
The program can achieve the national consistency desired by EPA without having
the specifics contained in the draft guidance, Hornback said.
"Many states have been addressing WET in their permitting programs for years,
using a variety of regulatory approaches," he said. "Some apply different
statistical techniques, while others use procedures that rely more on
professional judgment, after evaluation of information about the discharges at
issue."
Since EPA has not shown that these approaches have been ineffective, the agency
should clarify that alternatives will be allowed if they address toxic effects
on aquatic organisms in a state's rivers, lakes, and streams, Hornback said.
Dave Pierce, an engineer for ChevronTexaco, said in comments on behalf of the
WET Coalition, an industry group, that many states have implemented successful
WET programs and that some are more stringent than what EPA is proposing.
EPA should make clear in the guidance that one exceedance of a WET test limit
will not necessarily trigger an enforcement action, he said. Rather, the finding
that a WET limit was exceeded should prompt a review to determine if a "pattern
of toxicity actually exists," he said.
This could be done with an immediate retest. If that test shows no exceedance,
the facility should go back to its routine monitoring with no violation, he
said. If the retest shows excessive toxicity, "an appropriate accelerated
testing program should be triggered," Pierce said.
Step-Wise Approach Criticized
The regimen advocated by Pierce follows a "step-wise approach" outlined in the
AMSA comments. Rather than setting a numeric limit in which a facility either
passes or fails a test and then is at the mercy of EPA's enforcement discretion
policy, the agency should have "a non-numeric limit consisting of accelerated
follow-up tests and potential toxicity reduction evaluation (TRE) steps that
would be triggered by a test failure. Failure to conduct the additional testing
and possible TRE, not the initial failure, would be considered the violation,"
AMSA's Hornback said.
This option was discussed at a meeting with EPA officials, he said. Concerns
were raised at the time that the step-wise approach would be harder to address
in NPDES permits, Hornback said. In addition, he said EPA's enforcement
officials had indicated that without numeric limits it would be difficult to
assess compliance.
EPA proposed a step-wise approach, but Hornback said it falls short, and AMSA
cannot support it.
"While EPA's approach requires additional testing to determine whether a TRE
should be initiated following an initial test failure, the initial test failure
is still a violation," he said. "It was not AMSA's intent to simply add more
testing. Without defining the requirement to conduct the additional testing and
toxicity evaluation as the actual limit, the EPA approach simply increases the
chances of another test failure."
Lozeau said in NRDC's comments that EPA must express WET effluent limits as
numeric limits. He said dischargers' fears that numeric limits will result in
overzealous enforcement by EPA or by third parties have not been substantiated.
Case law has already established that citizen suits cannot be brought in federal
court for "wholly past violations," he said citing Gwaltney of Smithfield Inc.
v. Chesapeake Bay Foundation, 484 U.S. 49, 26 ERC 1857 (U.S., 1987).
By Susan Bruninga