Member Pipeline - Regulatory - Alert (RA 04-18)
To: Members & Affiliates
From: National Office
Date: November 11, 2004
Subject: EPA FINALIZES RULE TO PROMULGATE BACTERIA STANDARDS IN 21 STATES
Reference: RA 04-18
Attachment: Status of Bacteria Criteria in 35 BEACH Act
States and Territories (PDF, ~54 KB)
Printer friendly versionOn November 8, 2004, Michael O. Leavitt, Administrator of the U.S. Environmental Protection Agency (EPA or Agency) signed a final rule that sets bacteria standards for 21 coastal states and territories that had not updated their existing water quality criteria. Coastal states were required to make their criteria as protective as EPA’s 1986 bacteria criteria (that use enterococci and E. coli as indicators) by April 10, 2004, a deadline imposed by the Beaches, Environmental Assessment and Coastal Health (BEACH) Act of 2000. The final rule is available in pre-publication form on EPA’s website (http://www.epa.gov/waterscience/beaches/final-bacteria-rule-pre-pub.pdf) and will be published in the Federal Register soon. The rule takes effect 30 days after publication. This rule may ultimately impact publicly owned treatment works (POTWs) discharging to coastal recreation waters, depending on the state where they are located. AMSA has updated a table (attached) outlining the status of all 35 coastal states and territories to help public agency members determine whether their state is affected by the final rule. Since the July 9, 2004 proposal (http://www.epa.gov/fedrgstr/EPA-WATER/2004/July/Day-09/w15614.pdf), four states have adopted bacteria standards and are, therefore, not included in the final rule. The attached table reflects these recent changes.
The 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. Additional details about EPA’s “Clean Beaches Plan” are available on the Agency’s website (http://www.epa.gov/waterscience/beaches/plan.htm).
AMSA Comments Reflected in Final Rule
AMSA provided comments on the July 9, 2004 proposed rule on August 9, 2004
(http://www.amsa-cleanwater.org/advocacy/comments/2004-08-09OW_2004_0010.pdf).
AMSA’s comments focused primarily on EPA's proposed uses for the single sample
maximum (SSM) values that are part of the Agency’s 1986 criteria. AMSA was
concerned that the SSM would be applied as a never to exceed value in the
context of assessing attainment of standards, developing total maximum daily
loads (TMDLs), and determining National Pollutant Discharge Elimination System
(NPDES) permit compliance. AMSA stated that such application would place an
unnecessary economic burden on POTWs, especially those dealing with SSOs and
CSOs. Consistent with AMSA's comments, EPA's final rule recommends that the SSM
be used only for making beach notification and closure decisions, but does not
preclude states from using the SSM for other Clean Water Act purposes (e.g.,
permitting or TMDLs). EPA reaffirms in the final rule that the geometric mean is
the more relevant value for making water quality decisions because it is more
reliable, subject to less random variation, and more directly linked to the
underlying public health risk.
AMSA also voiced continuing concern over the validity of the 1986 criteria. In the final rule, EPA noted that while Congress recognized that the 1986 criteria need improvement, they also recognized that the 1986 criteria are “better than what is characterized as outdated criteria used by some states.” EPA also notes that they are working to come up with new criteria as mandated by the BEACH Act. New fresh water criteria are expected at the end of 2005.
A third AMSA concern highlighted in its comment effort was the lack of EPA-approved test methods. In the final rule, the Agency acknowledges the lack of test methods for enumerating enterococci and E. coli in effluent, but notes that its inter-laboratory study of method 1600 for enterococci and method 1603 for E. coli in secondary treated effluents is complete and supports publication of these methods for use in effluent. EPA is working “expeditiously” to promulgate these methods though AMSA members involved in the inter-laboratory testing are still concerned about the efficacy of these methods in effluent matrices.
Applicability of Final Rule
In the final rule preamble, EPA makes it clear that the rule, including the
Agency’s interpretation of the SSM, only applies to “coastal recreation waters”
(including the Great Lakes). EPA interprets “coastal recreation waters” to mean
only those designated for swimming, bathing, surfing, or similar water contact
activities.
For the states and territories listed in the final rule (as outlined in the attached table), permitting under the NPDES program, as well as monitoring and assessment based on applicable Clean Water Act water quality standards, must be based on the standards for bacteria contained in the final rule for all coastal recreation waters. Other applicable standards for bacteria previously adopted by the state or territory to protect uses other than primary contact recreation will also remain in effect.
In the final rule, the Agency is promulgating a geometric mean of 35/100 ml for enterococci in marine coastal recreation waters with four different SSM values, depending on the intensity of use. For fresh coastal recreation waters, EPA is promulgating a geometric mean of 126/100 ml for E. coli and a geometric mean of 33/100 ml for enterococci, also with four SSM values, depending on the intensity of use.
Ongoing AMSA Efforts
AMSA will continue to keep the membership apprised of developments related to
the BEACH Act, specifically 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 continue to examine the new
indicators and whether there will be implications for their plants. 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.
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