AMSA Regulatory Update April 2003

Click here for previous updates.

The National Office of the Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the April 2003 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to May 2, 2003. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm. Unless another contact person is specifically listed, call or email questions to Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Conferences

Register Today for AMSA’s 2003 National Environmental Policy Forum
AMSA's 2003 National Environmental Policy Forum & 33rd Annual Meeting (NEPF): Making Our Voices Heard . . . Mobilizing in Support of the National Clean Water Agenda is fast approaching. This year’s NEPF will be held May 17 – 21, 2003 at the Hyatt Regency Washington in Washington, D.C. Take this opportunity to learn more about the national clean water agenda and engage national policymakers on legislative and regulatory issues of importance to your agency, including blending, the Watershed Rule, and sanitary sewer overflows. Visit AMSA’s web site at www.amsa-cleanwater.org/meetings for program information and online registration.

Mark Your Calendars for AMSA’s Summer Conference
AMSA’s Summer Conference is set for July 15-18, 2003 in Boston, Mass., at the Fairmont Copley Plaza. The theme of the conference will be Water Quality and the Wastewater Community: Emerging Pollutants and New Challenges. Issues surrounding emerging pollutants, such as endocrine disruptors, and the latest on mercury, water quality trading, and total maximum daily loads as well as other water quality topics will be addressed. The conference will also examine the heightened focus that the U.S. Environmental Protection Agency (EPA) is now placing on existing pollutants such as nutrients and pathogens in many communities. Mark your calendar today for what is sure to be a valuable forum to explore these important topics.

Biosolids

EPA’s Response to NRC Biosolids Report in Line with AMSA Recommendations
On April 9, 2003, EPA published Standards for the Use or Disposal of Sewage Sludge; Agency Response to the National Research Council Report on Biosolids Applied to Land and the Results of EPA’s Review of Existing Sewage Sludge Regulations (68 Fed. Reg. 17379). The notice details the Agency’s preliminary review of the July 2002 National Research Council (NRC) report entitled, Biosolids Applied to Land: Advancing Standards and Practices (the NRC Report) as well as the strategy EPA plans to use for responding to the NRC Report’s recommendations. The notice also provides the initial results of the Agency’s review of existing biosolids regulations under the Clean Water Act and contains many similarities to the AMSA recommended priorities contained in its January 30, 2003 letter to G. Tracy Mehan, III, Assistant Administrator for Water, available at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-01-Mehanletter.pdf. AMSA will submit comments prior to the July 8, 2003 deadline and is seeking member input regarding EPA’s response to the NRC Report.

Upon initial review of EPA’s response, AMSA identified several key Agency statements that shed light on how the NRC Report may ultimately impact the Part 503 program and which demonstrate that the Association’s recommendations are in line with EPA’s responses to the report. The Agency continues to believe that land application of biosolids is an appropriate choice for communities, when conducted in compliance with EPA regulations. AMSA recommended that a new national survey of chemicals and pathogens in biosolids should be conducted, and the Agency recognized more data is necessary and stated its intent to conduct a more targeted survey to help fill data gaps and aid in future studies. Additionally, the Agency intends to conduct dialogue with other health-based federal agencies, such as the Center for Disease Control (CDC), on the possibility of implementing a system to track reported incidents to determine if adverse human health effects can be contributed to biosolids exposure, a move supported by AMSA. The Agency also expressed its interest in establishing partnerships and communicating more effectively with outside associations – an initiative that will benefit AMSA and its members by ensuring continued cooperation with EPA on, and input into, the biosolids program. Significantly, in preliminary reviews of the existing regulations and available scientific information, the Agency has not identified any additional toxic pollutants that warrant regulation in biosolids at this time. For more information on the Agency’s response to the NRC Report and the National Office’s comment effort, please see AMSA’s Regulatory Alert found on the Association’s web site at http://www.amsa-cleanwater.org/private/regalerts/ra03-06.cfm. Please direct additional questions to Will Pettit, AMSA, at 202/833-3280 or wpettit@amsa-cleanwater.org.

Water Quality

AMSA Seeks Changes to EPA Methylmercury Guidance
On April 14, 2003, AMSA, along with key stakeholders, met with EPA Office of Water officials to express concerns with a draft of the Agency’s implementation guidance for methylmercury. Among other issues, the stakeholder group expressed concerns with the Agency’s use of bioaccumulation factors (BAFs) to establish water column values for mercury, given the uncertainty associated with BAFs. EPA continues to develop the implementation guidance and to work on the more contentious permitting issues, including how to handle permitting before a total maximum daily load is developed. EPA has not provided a timeline for releasing a draft on the document for public comment. AMSA will continue to engage the Office of Water on this issue and continues to advocate both within the regulatory and legislative arenas for a national mercury strategy that will take into account the broad range of domestic and international mercury sources and address complex technical mercury issues, such as those with methylmercury.

AMSA Advocates in Regulatory, Legal Arenas on Whole Effluent Toxicity
On April 24, 2003, AMSA met with key EPA Office of Wastewater Management officials, including Linda Boornazian, Director, Water Permits Division and Rob Wood, Chief, State and Regional Branch of the Water Permits Division, to discuss ways of alleviating some of the problems with the Whole Effluent Toxicity (WET) methods by changing the way the methods are implemented. AMSA has filed a petition for review of the Agency's final WET methods promulgated in November of 2002, but has committed to continuing discussions with the Agency on issues not directly related to this litigation. Jim Pletl, Environmental Scientist, Hampton Roads Sanitation District (HRSD), in Virginia Beach, Virginia, and Joe Gully Biologist II, with the County Sanitation Districts of Los Angeles, California, prepared presentations to outline the problems with assessing toxicity in low or no dilution environments and to demonstrate the problems with data analysis and interpretation. Norm LeBlanc, Chief, Technical Services, HRSD, led a discussion that focused on two proposed approaches, a multiple test approach to remove some of the uncertainty associated with determining compliance based on a single WET test, and a permit limitation approach that would require permittees to complete a series of activities should a test result indicate potential toxicity, in lieu of triggering an automatic violation. AMSA committed to developing a conceptual framework to outline its permit limitation approach, including what it sees as a reasonable timeframe for the completion of the required actions taken in the event test indicates toxicity. Many details remain undefined and EPA has not committed to accepting the proposed approach, but both sides are willing to move the discussions forward.

On March 31, 2003, AMSA, with a coalition of publicly owned treatment works (POTWs), filed suit against EPA in the District of Columbia Circuit Court of Appeals challenging EPA's November 19, 2002 final WET test methods (67 Fed. Reg. 69952), with hopes of reaching an agreement with EPA on a number of WET issues important to municipalities including numeric versus narrative criteria for WET, the WET methods’ ability to detect toxicity in undiluted effluent, WET test acceptability criteria, and the ramifications of single WET test failures. AMSA and the POTW coalition filed a nonbinding statement of issues with the court April 30. AMSA anticipates settlement discussions to occur in the case throughout 2003, with issues identified for briefing by early 2004.

Wet Weather

AMSA to Urge EPA Enforcement Chief to Allow Blending
AMSA plans to meet with the Assistant Administrator for Enforcement & Compliance Assurance (OECA), John Peter Suarez, and other OECA officials to again emphasize its belief that prohibiting blending is nothing more than a backward approach to achieving operation and maintenance improvements and capacity enhancement measures, and more importantly, that such a prohibition would negatively impact water quality. AMSA believes a national blending policy should state that blending is not a bypass as defined by 40 CFR §122.41(m), as long as the POTW meets appropriate conditions, and that permitting agencies should be authorized to incorporate blending as an “alternative flow routing scenario” in permits. EPA continues to work on the blending guidance, but a deadline for its publication has not been set [see EPA Municipal Meeting article below].

Action in AMSA's blending and sanitary sewer overflow case heated up in March, when the plaintiffs and AMSA filed separate motions strongly opposing EPA's effort to dismiss the case. Pennsylvania Municipal Authorities Association, et al. v. Whitman et al., No. 1:02CV01361 (D.D.C. July 8, 2002). In this case, AMSA, regional POTW group plaintiffs and one city are challenging EPA Headquarters’ and Regions III, IV, and VI’s inconsistent positions on blending and several other wet weather issues. Last October, EPA argued to the court that the case should be dismissed because the challenged regional actions are not "final agency actions" subject to court review. Over the winter, the court allowed the plaintiffs and AMSA to obtain internal EPA documents that might serve as evidence of a pattern of final decision-making in the areas of blending and SSOs. AMSA and the plaintiffs now await the court’s decision on whether the case can remain in court and proceed to briefing on the merits. Should the court allow the case to proceed, we expect it will be resolved in early 2004.

EPA Municipal Meeting

AMSA Meets with Office of Wastewater Management to Discuss Current Municipal Issues
On April 23, AMSA and other municipal stakeholders met with Director of the Office of Wastewater Management (OWM), Jim Hanlon, Director of the Water Permits Division, Linda Boornazian, and other key OWM officials to discuss a number of issues AMSA has been following closely. The packed agenda included discussions on whole effluent toxicity (WET), several wet weather issues, including stormwater, watershed permitting and trading, wastewater infrastructure, environmental management systems/asset management, and pretreatment streamlining. This municipal issues meeting was the first held with Jim Hanlon as the head of OWM.

On the WET front, EPA informed the group that work was continuing on the Agency's reasonable potential guidance and that consideration was being given to whether WET implementation guidance would be developed. On the blending guidance, Hanlon noted that his office was still a few weeks away from receiving feedback from Deputy Administrator Linda Fisher regarding how the Agency should proceed, at which point the Office of Management & Budget would also be "consulted." Hanlon encouraged AMSA to meet with J.P. Suarez, Assistant Administrator for the Office of Enforcement and Compliance Assurance, on the matter, and indicated that a draft blending guidance document could be published in the Federal Register within 60-90 days for public comment. Linda Boornazian indicated that the Agency was in the process of resuming work on pretreatment streamlining. The streamlining workgroup's goal was to finalize the "easy," less contentious issues first and continue working on the more complicated and contentious issues like the pH and mass vs. concentration issues. AMSA noted that it continues to await feedback from the Agency on the pH survey it drafted over a year ago. Boornazian also indicated that her office was talking with officials from the Office of Research and Development regarding the pH issue. Jim Hanlon concluded the meeting by indicating that he would like to have the meetings more frequently, perhaps as frequently as every second month, which will ensure the POTW community has the most up-to-date information from OWM and will provide a regular forum in which to advocate for regulations that make sense for POTWs.