Member Pipeline - Regulatory - Alert (RA 03-01)
To: Members & Affiliates, Water Quality Committee, Legal Affairs
Committee
From: National Office
Date: January 2, 2003
Subject: EPA APPROVES WHOLE EFFLUENT TOXICITY METHODS
Reference: RA 03-01
Attachment: Summary of What EPA Has Done in its WET
Rule Published November 19, 2002 (.pdf; ~50 KB)
Printer friendly versionOn November 8, 2002 the U.S. Environmental Protection Agency (EPA or Agency) published a final rule, Guidelines Establishing Test Procedures for the Analysis of Pollutants; Whole Effluent Toxicity Test Methods, ratifying ten whole effluent toxicity (WET) test methods and withdrawing two (67 Fed. Reg. 69,952). Originally finalized on October 16, 1995 (60 Fed. Reg. 53,529), several groups filed a petition for review of the methods and entered into a settlement agreement with the Agency in 1998 (Edison Electric Institute et al. v. EPA, No. 96-1062, D.C. Cir.). In addition to requiring the development of several guidance documents, the settlement agreement required the Agency to conduct an interlaboratory variability study of the methods. On September 28, 2001, EPA proposed specific revisions to the WET test methods and proposed to ratify its previous approval of the methods (66 Fed. Reg. 49,794). The November 8, 2002 rule takes final action on the September 2001 proposal. In cooperation with the WET Coalition1, AMSA compiled extensive comments on the September 2001 proposal. Initial analysis of the final rule reveals that EPA has not corrected many of the serious flaws in the methods that AMSA and the WET Coalition identified in their comments.
Next Steps
For the past seven years, the legal questions surrounding many of
the WET tests limited the extent to which permits were issued with WET limits.
Now that EPA has finalized the methods it is likely that more and more permits
will be issued with some sort of WET limit or monitoring requirement.
Unfortunately, the changes EPA has made to the methods have not addressed the
method variability and accuracy issues sufficiently. As such, the tests remain
unreliable for permit compliance purposes. While AMSA has pursued ways in which
EPA can implement WET permit limits in a reasonable manner to compensate for
some of the errors introduced by the methods, for example by using limits where
test failures trigger further investigation (i.e., toxicity identification
evaluations or TIEs) instead of automatic permit violations, the Agency has not
yet committed to making the necessary policy and regulatory changes.
In the coming weeks, AMSA will continue to evaluate the final rule and assess the impact to members of EPA not adequately addressing the Association’s concerns. AMSA is planning an early January meeting with the directors of both the Office of Science and Technology and the Office of Wastewater Management to further discuss AMSA’s continuing concerns with the test methods as well as EPA’s implementation of WET limits. While AMSA is optimistic that the Agency will be open to making some of AMSA’s recommended changes, it is likely that a protective petition for review of EPA’s November rulemaking will be filed to, at a minimum, give POTWs and other stakeholders more time to explore resolutions to these longstanding concerns with the Agency.
For more information on AMSA’s activities on WET, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.
AMSA’s Comments on the Proposed Rule
AMSA’s comments on the September 2001 proposal noted that the WET
tests have proven useful as investigative tools in identifying potential
environmental toxicants and encouraged EPA to utilize the tests in this manner,
rather than as the basis for enforceable permit limits. AMSA also encouraged EPA
to consider new ways of interpreting WET test results in order to alleviate some
of the complexities now encountered by the regulated community and regulators
alike. Specifically, AMSA commented that:
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During the interlaboratory study, a large number of testing laboratories failed to meet all of the mandatory test conditions, yet in many cases EPA did not reject the test results. Furthermore, EPA did not provide adequate reasoning for deviating from the mandatory quality assurance/quality control (QA/QC) requirements;
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Many of the methods did not undergo the required minimum number of completed tests due in part to an inadequate number of qualified laboratories, and EPA did not sufficiently evaluate all endpoints for each species;
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The methods do not include detection limits and therefore provide no means to account for background “noise” and ensure that the results are meaningful. AMSA noted that the results of the interlaboratory study provide the data necessary to evaluate this signal to noise ratio;
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EPA evaluated method variability at highly toxic levels not generally present in permit compliance scenarios. To improve method performance, AMSA suggested that, in order to confirm a possible toxic event, EPA require a measured significant toxic response in two adjacent effluent dilutions;
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EPA relies on the use of reference toxicity tests to determine if a laboratory system is in “control” and producing consistent results, but failed to adhere to this approach when it considered the reference toxicity information from the interlaboratory study ineffective;
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The methods cannot accurately predict environmental impairment under most discharge scenarios and there is no means by which to ensure consistency of results between or even within laboratories; and
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EPA is unable to demonstrate a consistently predictable correlation between effluent toxicity and instream impairment.
AMSA’s comments along with a copy of the WET Coalition’s comments can be found on AMSA’s web site at: http://www.amsa-cleanwater.org/private/reg_outreach.cfm.
The Final Rule
In the final rule, EPA ratified the (1) Ceriodaphnia dubia
Acute Test; (2) Flathead Minnow Acute Test; (3) Sheepshead Minnow Acute Test;
(4) Inland Silverside Acute Test; (5) Ceriodaphnia dubia Survival and
Reproduction Test; (6) Fathead Minnow Larval Survival and Growth Test; (7)
Selenastrum capricornutum Growth Test; (8) Sheepshead Minnow Larval Survival
Test; (9) Inland Silverside Larval Survival and Growth Test; and (10)
Mysidopsis bahia Survival, Growth and Fecundity Test. EPA revised some of
the ratified methods “to improve performance and increase confidence in the
reliability of the results.” EPA concluded that these methods are (1) repeatable
and reproducible, (2) available and applicable, and (3) representative, in
accordance with the Agency’s 1998 Report to Congress on the Availability,
Adequacy and Comparability of Testing Procedures. EPA withdrew the
Holmesimysis costata Acute Test and the Champia parvula Reproductive
Test methods because the Agency was unable to obtain interlaboratory precision
data for them.
Initial analysis of the November rule indicates that many of AMSA’s comments on the proposal have not been addressed. Attached is an analysis of the final rule prepared by the WET Coalition summarizing what changes have or have not been made as well as a summary of how EPA responded to the WET Coalition’s comments.
ATTACHMENT
[1] The WET Coalition consists of the following members: Alliance of Automobile Manufacturers, American Chemical Council, American Forest & Paper Association, American Petroleum Institute, AMSA, Rubber Manufacturers Association, Utility Water Act Group, VAMWA, WESTCAS, Alcoa, General Electric, Kennecott Utah, and Milliken Company.