AMSA Regulatory Alert (RA 04-14)

To: Members & Affiliates
From: National Office
Date: July 9, 2004
Subject: LEAVITT SIGNS PROPOSED RULE TO PROMULGATE BACTERIA STANDARDS IN 25 STATES
Reference: RA 04-14
Attachment: Status of Bacteria Criteria in BEACH Act States and Territories (PDF ~10 KB)

On July 1, 2004, the Administrator of the U.S. Environmental Protection Agency (EPA or Agency) signed a proposed rule to federally promulgate bacteria standards for 25 coastal states and territories that had not updated their existing water quality criteria as of April 10, 2004, a deadline imposed by the Beaches, Environmental Assessment and Coastal Health (BEACH) Act of 2000. The proposed rule is available in pre-publication form on EPA’s website (http://www.epa.gov/waterscience/beaches/pre-pub-proposed-rule-bacteria-standards.pdf) and will be published in the Federal Register in the coming weeks. This rule will ultimately impact publicly owned treatment works (POTWs) discharging to coastal waters, and AMSA is recommending that its members in the affected states, who have not already done so, begin to evaluate the implications for their plants. AMSA has developed a table (attached) outlining the status of all 35 coastal states and territories to help you determine whether your state is affected by the proposal.

The proposed rule comes after an April 20, 2004 announcement which outlined the Agency’s “Clean Beaches Plan,” designed to accelerate progress at the federal and state level to meet all of the requirements of the BEACH Act, and EPA’s intention to propose these bacteria standards. Additional details about EPA’s “Clean Beaches Plan” are available on the Agency’s website (http://www.epa.gov/waterscience/beaches/plan.htm).

EPA is soliciting comments on several aspects of the proposed rule which are of interest to AMSA members. The Agency notes that stakeholders will have 30 days after publication in the Federal Register to provide comments. Below, AMSA highlights several of the key areas and encourages members to review the rule and develop comments as appropriate. Once the proposed rule is published in the Federal Register, AMSA will notify the membership of the comment deadline and solicit input to aid in the National Office’s comment effort.

Background
The BEACH Act requires coastal states and territories, including those bordering the Great Lakes, to adopt water quality criteria for pathogens and pathogen indicators for all coastal recreation waters by April 10, 2004, that are at least as protective as EPA’s 1986 bacteria criteria, which use E. coli and enterococci as the indicator organisms. According to the Act, if a state fails to meet this deadline, EPA must promptly propose federal standards. To date, only 10 of the 35 affected states and territories have adopted criteria that would comply with the BEACH Act. A map of the coastal states and territories and copies of the letters sent from EPA’s Acting Assistant Administrator for Water Benjamin Grumbles to each state reminding them of their obligations under the BEACH Act and outlining the current status of their criteria are also available on EPA’s website (http://www.epa.gov/waterscience/beaches/plan.htm#letters).

EPA hopes to issue a final rule by the end of the year. However, in its letters to the affected states and in the pre-publication proposal, EPA indicates that if a state adopts its own standards that comply with the BEACH Act during the Agency’s regulatory development process, the Agency will exclude them from the final rule.

AMSA has expressed concern over the past few years regarding the adoption of E. coli and enterococci-based standards, including in AMSA’s comments on EPA’s Draft Bacteria Criteria Implementation Guidance (http://www.amsa-cleanwater.org/private/legreg/outreach/080202bacteriaguid.pdf). One of AMSA’s major concerns has been the lack of EPA-approved test methods for measuring the indicators in wastewater effluent. AMSA has learned that EPA is planning to propose test methods later this year that would be approved for use on wastewater effluent. EPA is currently conducting a follow-up study to its full-scale validation study of these methods to address issues associated with false negatives.

AMSA has also learned that release of EPA’s implementation guidance for its 1986 bacteria standards has been put on hold indefinitely due to unresolved issues that some states have with the guidance. EPA may develop interim guidance and will work with states as needed.

Applicability of Proposed Rule
In the proposed rule preamble, EPA makes it clear that the proposed bacteria standards and all other requirements of the BEACH ACT are limited to “coastal recreation waters.” EPA interprets “coastal recreation waters” to mean only those designated for swimming, bathing, surfing, or similar water contact activities (see “Categories of Coastal Recreation Waters” below). Where states do not have bacteria standards as strict as or more strict than those in EPA’s proposal, EPA’s proposed standards will apply.

For the states and territories listed in the proposed rule (as outlined in the attached table), permitting under the National Pollutant Discharge Elimination System (NPDES), as well as monitoring and assessment based on applicable Clean Water Act water quality standards, would need to be based on the standards for bacteria contained in the final rule. Other applicable standards for bacteria previously adopted by the state or territory to protect uses other than primary contact recreation would also remain in effect.

The proposed criteria are as follows:

EPA’s Request for Comments

Use of the Single Sample Maximum
EPA is proposing all four Single Sample Maximums (SSMs) included in the 1986 bacteria criteria document for each geometric mean. The SSM values allow decision-makers to quantitatively determine, based on a single sample, when water quality at a particular site may not be associated with long-term protective conditions (i.e., when overall bacteria concentrations are likely to exceed the protective central tendency). EPA intends to use this determination especially for beaches that are infrequently monitored or prone to short-term spikes in bacteria concentrations (e.g., waters that may be affected by a combined sewer overflow outfall). The 1986 bacteria criteria document does not interpret the meaning of the term “single sample maximum.” In the proposed rule, EPA lays out the following different interpretations and requests comment on each:

• The SSM should never be exceeded in coastal recreation waters;

• Exceedance of the SSM would be allowed when making attainment decisions because bacterial measurements are inherently variable, due to a number of factors that may not necessarily reflect underlying water quality. Under this option, an unacceptably high value for any given individual sample may be used to trigger a beach advisory or closing or additional monitoring, or it might be evaluated with other sample results, but would not necessarily be used alone to determine non-attainment of the water quality standards;

• SSMs would be part of the water quality criteria, but only used for making beach closure and opening decisions. In this case, states and territories could use only the geometric mean for other Clean Water Act purposes, such as NPDES permitting, Total Maximum Daily Loads, and waterbody assessments; or

• EPA would promulgate only the geometric mean of bacterial density in the final rule. SSMs would be available for use as an implementation tool for making beach opening and closure decisions, but would not be part of the applicable water quality standards.

Categories of Coastal Recreation Waters
In its determination of “coastal recreation waters,” EPA defined four categories, each with its own SSM: 1) designated bathing beach waters, 2) moderate use coastal recreation waters, 3) light use coastal recreation waters, and 4) infrequent use coastal recreation waters. To come up with definitions for each category, EPA reviewed websites in various fields of study (e.g., meteorology, human health risk characterization, and urban planning). EPA requests comments on each of the following definitions:

• Designated bathing beach waters are those waters that, during the recreation season, are heavily used and may have a lifeguard, bathhouse facilities, or public parking for beach access. States may include any other waters in this category even if the waters do not meet these criteria.

• Moderate use coastal recreation waters are those coastal recreation waters that are not designated bathing beach waters but typically, during the recreation season, are used by at least half of the number of people as at typical designated bathing beach waters within the state. States may also include light use or infrequent use coastal recreation waters in this category.

• Light use coastal recreation waters are those coastal recreation waters that are not designated bathing beach waters but typically, during the recreation season, are used by less than half of the number of people as at typical designated bathing beach waters within the state, but are more than infrequently used. States may also include infrequent use coastal recreation waters in this category.

• Infrequent use coastal recreation waters are those coastal recreation waters that are rarely or occasionally used. Examples of infrequent use coastal recreation waters might include waters that are at remote locations, difficult to access, or infrequently used for primary contact recreation due to commerce or navigation.

Ongoing AMSA Efforts
AMSA will continue to keep the membership apprised of developments related to the BEACH Act and the development of EPA-approved E. coli and enterococci test methods for use on wastewater effluent. Again, AMSA encourages its members in states affected by the BEACH Act to begin examining the new indicators and whether their will be implications for their plants. Once the proposed rule is published in the Federal Register, AMSA will formally solicit comments from the membership on the issues described above. If you would like additional information on the BEACH Act or related issues, please contact Chris Hornback, AMSA’s Director of Regulatory Affairs at 202/833-9106 or chornback@amsa-cleanwater.org.

ATTACHMENT:

• Status of Bacteria Criteria in BEACH Act States and Territories (PDF ~10 KB)