July 31, 1997
Michael B. Cook
Director, Office of Wastewater Management
Office of Water
U.S. Environmental Protection Agency
401 M Street, SW (4201)
Washington, DC 20460
Dear Mike:
AMSA appreciated the opportunity to meet on June 23 and 24, 1997,
to discuss the development of revised EPA procedures for making
determinations under 40 CFR §122.44(d)(1)(ii) for whole
effluent toxicity (WET). This regulation provides guidance for
determining whether a pollutant "causes, has the potential
to cause, or contributes to a violation of a water quality standard."
During the meeting, these procedures were collectively referred
to as reasonable potential (RP) determinations. We believe that
the meeting was productive, and hope that the progress made will
be reflected as soon as possible in EPA regulations or guidance
utilized by all EPA regional offices and states.
RP Is One of Several WET Implementation Issues
Section 122.44(d)(1)(ii) determinations are one of several key issues discussed by AMSA and other attendees at the September 1996 stakeholders meeting in Washington on WET Implementation issues. Those issues included revisions to water quality standards, exposure, RP determinations, NPDES permitting and enforcement. Also discussed at the September meeting was the need to improve the preparation of draft NPDES permit provisions for WET. EPA, with stakeholder involvement, should move forward on resolving these issues, particularly those relating to water quality standards and NPDES permitting. For the reasons
discussed below, resolution of these two issues is important,
especially for POTWs, if WET tests are to be an effective tool
for preventing pollution because of the often unknown characteristics
of plant influent.
Meeting Discussion on RP Determinations
Each invited organization is reviewing notes from the June 23-24
meeting and will prepare further comments to supplement this letter
so that the comments can be considered within the time-line discussed
at the meeting. We recognize that RP determinations are an important
part of the permitting process, and if appropriately applied can
go a long way towards determining whether any constituent, including
WET, is to be included in site-specific water quality determinations
and NPDES permits.
Three key points were discussed at the beginning of the meeting
regarding §122.44(d)(ii) determinations: (1) These determinations
must accurately reflect toxicity in the receiving waters and be
matched to the designated use; (2) All data should be considered
or weighted; and, (3) WET should be a management tool for pollution
prevention to protect the environment as defined by an appropriate
water quality standard.
The following six types of data and information, summarized below,
were discussed for inclusion in §122.44(d)(ii) determinations:
(1) available in-stream toxicity data representative of the receiving
water environment; (2) Bioassessment data; (3) Physical data;
(4) The designated use and whether attained; (5) Exposure assumptions;
(6) Chemical data; and, (7) Existing point and nonpoint sources.
Comprehensive consideration of, and a weighting method for, these
data and considerations were supported during the discussion.
It was recognized that EPA has developed information on the strengths
and weaknesses of biological, chemical, physical, and WET data.
EPA has also issued draft methodology for making aquatic life
use support determinations discussed in section 5 of the Draft
Guidelines for Preparation of the Five-Year State Water Quality
Assessments.
The balance of the discussion focused primarily on processes for
making initial "yes" or "no" RP decisions
and for resolving initial "maybe" assessments. The
need for the development of sufficient data to make such decisions
and assessments was recognized by all parties. Also discussed
was a process for reviewing and changing initial "yes"
determinations and resolving "maybe" situations using
data collection and testing, or TIE/TRE procedures. This could
allow the permittee to avoid enforceable WET test limits. In
this context, the EPA Region VI WET permitting process was discussed
as a potential model for further review.
The flow chart from Region VI represents the RP process discussed
at the meeting as EPA would require. Unless pursuit of a solution
is refused, permittees should be able to utilize the RP process
as a means to negate the need for a WET test limit as EPA would
require. (The RP analysis may lead to additional chemical specific
limits or, in the case of substances such as diazinon, best management
practices (BMPs).
A Further Step -- Eliminate Enforceable WET Tests as Permit
Limits
Municipal representatives and some other non-EPA participants
urged the Agency to eliminate the use of WET tests as permit limitations
for WET through changes in EPA NPDES permit regulations and compliance
and enforcement policies. WET test limitations were identified
as the primary barrier to the expanded use of WET tests including
accelerated testing as a management tool for pollution prevention
and water quality protection. The reasons for eliminating the
use of enforceable WET test permit limitations were cited as follows:
- "Accuracy of WET tests cannot be ascertained" as determined by EPA;
- Tests are highly variable;
- Tests are difficult to perform and controls may die;
- POTWs are not designed to control WET;
- WET often results from unknown sources including household products, synergistic effects of chemicals, and uncontrollable, illegal discharges;
- POTWs are unable to know the cause of toxicity so that it can be controlled before WET test failures occur, which exposes local governments to administrative and civil fines and penalty liability. Discussion of this issue included: Whether it is fundamentally fair for enforceable WET test limitations to be used when POTWs lack fair notice of what they must do to conform their actions to the requirements of the law, in the form of a permit limit, before a violation occurs?
A change in §122.44(d)(ii) determinations alone can not make
WET testing a fully functioning tool for pollution prevention
because of the disincentive which enforceable WET testing limitations
represent to the POTW community.
At the meeting, EPA declined consideration of this request to
revise EPA permit regulations as to enforceable WET test limitations
and enforcement policies. The alternative discussed by municipal
representatives was to shift the NPDES permit to a performance
based permit where the permit would outline what is expected of
the facility, i.e., detect, find and eliminate causes of in-stream
toxicity. Fines and penalties would then be based on the POTW
failure to perform and not WET test failures. This shift places
the enforcement emphasis on performance, rather than on failure
to locate and reduce toxicity, and would remove the present disincentive
to use WET testing as a management tool.
AMSA urges EPA to consider regulatory changes providing for a
shift in liability policy and urges further consideration of this
issue at future public meetings. Among the steps which this consideration
should include are (1) a detailed review of the reasons for change
in enforcement policy summarized above; and (2) development of
a model, enforceable tiered process for further analysis, accelerated
testing, a TIE or TRE, that would also include procedures for
ending inconclusive TIEs/TREs.
We urge adoption of the performance-based permit conditions as
the alternative to the WET test permit limitation in order to
remove the long-standing barrier to more effective pollution prevention
at POTWs. This would serve as a win/win example of more effective
regulation in line with the Administration's government reinvention
initiative.
Please feel free to contact AMSA's Executive Director, Ken Kirk,
at 202-833-4653, if you have any questions. We look forward to
working further with EPA and other stakeholders on these and related
WET implementation issues.
Sincerely,
Cecil Lue-Hing
President, AMSA
cc: James Pendergast, Acting Director, Permits Division
Margarete Heber, Office of Wastewater Management
Norm LeBlanc, Chair, AMSA Water Quality Committee