Clean Water Advocacy - Newsroom - AMSA in the News
No. 218
Tuesday, November 12, 2002 Page AA-1
ISSN 1521-9402
Leading the News
Water Pollution
Ten Whole Effluent Toxicity Test Methods
Ratified by EPA in Rule; Challenge Planned
A final rule approving methods for measuring the chronic toxicity of
industrial effluents and the waters into which those effluents are discharged
was signed Nov. 8 by Environmental Protection Agency Administrator Christine
Todd Whitman.
Under the final rule, the agency will ratify 10 of the 12 proposed whole
effluent toxicity (WET) test methods, according to Marion Kelly of EPA's Office
of Water Engineering and Analysis Division.
The rule was proposed in September 2001 (188 DEN A-5, 10/1/01 ).
The rulemaking is designed to improve the performance of whole effluent toxicity
(WET) tests and increase confidence in the reliability of the results from the
test procedures.
The two tests being withdrawn are the Champia parvula reproduction test and the
Holmesimysis costata acute test, Kelly said.
However, the rule is "not remarkably different" from the proposal, according to
Debra Nicoll, in the EPA Office of Science and Technology. It does seek to
clarify items that are required versus those that are recommended, a problem
that had been raised by commenters on the proposal, she said.
Challenge to Rule Anticipated
Even before Whitman could get the rule signed, officials representing municipal
wastewater treatment facilities announced they would challenge the regulation in
court.
Current WET testing methodologies are "not a good indicator of the water quality
of the streams we are discharging into," Christopher Westhoff, assistant city
attorney for the Los Angeles Department of Public Works, told BNA Nov. 7.
"Uncertainty costs you money and time."
Westhoff chairs the legal affairs committee of the Association of Metropolitan
Sewerage Agencies, which was meeting in Denver Nov. 6-8.
He said AMSA would sue EPA over the rule within six months.
The agency first issued a rule in October 1995 setting consistent procedures for
determining the overall toxicity of effluent discharged into U.S. waters (60
Fed. Reg. 53,529; 199 DEN A-3; 10/16/95). That WET test rule contained 17
methods for estimating acute and chronic toxicity.
WET tests, which seek to characterize effluent as a whole in terms of its toxic
effects on certain test species, such as flathead minnows, have been criticized
because they have been known to generate false positives exaggerating the
toxicity of the effluent. These erroneous results could result in tighter
National Pollutant Discharge Elimination System permit limits being
unnecessarily imposed on dischargers.
Question of False Positives
Several groups sued EPA over the 1995 rule because of the false positives issue.
A settlement was reached in which the agency agreed to do studies to quantify
the variability in 12 of 17 test methods (Edison Electric Institute v. EPA, D.C.
Cir., No. 96-1062, and consolidated cases, 7/27/98).
The 12 methods studied represented a combination of acute and chronic test
methods; freshwater and marine test methods; and invertebrate, fish, and algal
species, EPA said.
According to Westhoff, under the rule being promulgated by EPA, a discharger
could be in violation of a NPDES permit because testing for toxicity "killed one
fish in a 90-day period. And you really can't say what it was that caused the
critter to go belly up."
Companies could face administrative, civil and even criminal penalties over such
violations, he said.
"And I don't think your people are going to want to go to jail over one dead
fish," he said.
EPA Cites Insufficient Lab Support
In the 2001 proposal, EPA said it did not perform the interlaboratory study for
the Champia parvula reproduction test because it did not have sufficient
"participant laboratory support." Commenters, including AMSA and several
associations representing industrial dischargers, criticized the inclusion of
the method. The comments said that the need for the test should not justify
circumventing the validation process. EPA had said that the Champia parvula test
was the only method for marine plant species.
"Maintaining an approved test method for this functional group is important for
the proper implementation of the WET program," the proposal said.
Similarly, the agency did not perform an interlaboratory study of the
Holmesimysis costata acute test either, the comments said.
Organizations fighting the new EPA rule could spend up to $1 million or more on
litigation, Tim Moore, president of Risk Sciences Inc. of Brentwood, Tenn., a
firm that specializes in developing site-specific water quality criteria and
NPDES permit limits for municipal and industrial dischargers, said during a
presentation at the Denver meeting.
EPA's answer is that WET testing "is not supposed to give an accurate
prediction" of toxicity.
"It's only supposed to give us an early warning, and 'better safe than sorry,' "
Moore said. "This test cannot be used as a way to identify felons."
By Susan Bruninga and Tripp Baltz