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AMSA December 2001 Regulatory Update

Member Pipeline - Regulatory - Update (December 2001)

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: November 30, 2001

AMSA’s National Office is pleased to provide you with the Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 30, 2001. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA’s website at www.amsa-cleanwater.org. If you have any questions or comments, please contact the AMSA National Office, 202/833-AMSA or info@amsa-cleanwater.org.

 

Biosolids

Legal Deadline for Final Rule on Dioxin in Land Applied Biosolids Extended
Under an existing Consent Decree to which AMSA, the U.S. Environmental Protection Agency (EPA), and environmental petitioners are parties (Gearhart v. Whitman), the Agency is required to finalize a regulation for dioxin in land-applied biosolids by December 15, 2001. This deadline has been extended to allow EPA additional time to account for new information and ongoing assessments. Among other sources of new information that EPA will consider is AMSA’s recently completed 2000/2001 Survey of Dioxin-Like Compounds in Biosolids: Statistical Analyses (Final Report). AMSA’s Final Report demonstrates that levels of dioxin-like compounds in biosolids are on average well below EPA’s proposed 1999 limit and have declined since the previous AMSA survey was conducted in 1994/1995 (see full story below). In addition to AMSA’s now Final Report, EPA itself has collected significant new data on dioxins in biosolids since the rule was proposed in December 1999. EPA also is conducting a new risk assessment to support the final rule. Accordingly, AMSA and the Consent Decree parties have extended, with the court’s approval, the deadline for EPA to complete the rule from December 15 to March 1, 2002.

The March 1, 2002 extension, however, is unlikely to provide sufficient time for EPA to complete its work. Matters are complicated by the fact that in Spring 2002 EPA is expected to approve a new and significantly more stringent Agency-wide cancer value for dioxin. EPA plans to use this new value, if approved, in the land applied biosolids rule. The use of this new cancer value is expected to significantly impact EPA’s risk assessment for the rule. Accordingly, AMSA and the parties continue to negotiate a further extension of the deadline beyond March 1. AMSA anticipates that a longer extension will be agreed upon, and that there will be additional notice and comment opportunities for the membership on this new scientific information and other developments since the rule’s proposal in December 1999.

AMSA will update the membership upon the establishment of a new negotiated deadline for EPA’s completion of the rule. At that time, AMSA will outline the process for additional notice and comment and the Association’s plans for developing comments. These plans will include comprehensive reviews of EPA’s survey data; assessment of the impact of the new dioxin cancer value, and evaluation of EPA’s new risk assessment model to ensure the final regulation is realistic and scientifically sound.

It is important to note that under the same Consent Decree, EPA is expected to finalize by December 15, 2001, a regulation taking no action on dioxin for landfilled or incinerated biosolids. We do not anticipate any delays in EPA meeting this deadline for these two biosolids options.

AMSA Releases Final Report on Dioxin Survey
On November 29 AMSA released a final report detailing the results of a voluntary survey designed to determine current levels of dioxin and dioxin-like compounds in biosolids (See Regulatory Alert 01-19). The survey results demonstrate that levels of dioxin in biosolids are on average well below EPA’s proposed 1999 limit and have declined since the previous AMSA survey was conducted in 1994 and 1995. Additional information and a copy of the final report can be viewed at: http://www.amsa-cleanwater.org/advocacy/dioxin/dioxin.cfm.

Sierra Club Issues New Draft of Sewage Sludge Guidelines
In July 2001, AMSA commented on a draft set of guidelines developed by the Sierra Club outlining their position on the reuse of biosolids. See Regulatory Alert 01-9. The draft made numerous claims that were either incorrect, overstated, or simply did not reflect the existing regulatory structure governing the management of biosolids. Despite a meeting with one of the authors and numerous comments from AMSA and other stakeholders, a new draft of the guidelines shows some improvement but nevertheless provides a scathing review of the current regulatory program. Among other things, the new guidelines state that the "deficiencies of the current land application policy cannot be addressed by merely ‘fine tuning’ the existing rules or by issuing guidance documents or adopting voluntary sludge management systems," and highlight elements of the regulatory structure that need improvement, including pathogen controls, application rates, and metals levels. The new guidelines also provide "Guidance for Community Activists" to use when pursuing local ordinances to control the land application of biosolids and an extensive list of resources used to develop the guidelines. AMSA is currently reviewing the guidelines and evaluating how to appropriately respond. A copy of the guidelines can be obtained at: http://www.amsa-cleanwater.org/temp/11-29-01sierraclub.doc. AMSA Comments on the July 2001 proposal can be viewed at: http://www.amsa-cleanwater.org/private/legreg/outreach/7-2-01sierraclub.pdf.

 

Water Quality

EPA Releases Guidance on Consolidating 305(b) Reports and 303(d) Lists
EPA released on November 19 its 2002 Integrated Water Quality Monitoring & Assessment Report Guidance which for the first time integrates the development and submission of the 2002 305(b) water quality reports and 303(d) lists of impaired waters. Starting with the next 303(d) list in October 1, 2002, states will be asked to submit one "integrated report", combining the previously separate 305(b) report and 303(d) list. The integrated report must include water quality standard attainment information for all state waters, and, where insufficient information exists to make a determination, a monitoring schedule to facilitate better tracking for that water body. States will also be required to establish assessment and listing methodologies to explain to EPA and the public how the attainment status will be determined for each waterbody.

AMSA has for many years raised concerns about the problems of maintaining separate 305(b) reporting and 303(d) listing requirements. Most significant among those concerns is the potential impact of the 305(b) report, a non-regulatory tracking tool that has been criticized as incomplete and inaccurate, on whether or not a particular waterbody should be listed as impaired under the 303(d) process. In general, the guidance takes several significant steps towards addressing AMSA concerns, including the requirement for states to track all waters, submit assessment and listing methodologies explaining how attainment status determinations are to be made, and develop and submit monitoring schedules detailing which waters will be monitored each year. However, AMSA believes EPA may have missed an opportunity by not providing additional guidance in some areas of the 303(d) listing process. For example, the guidance does not provide states with substantive guidance concerning how they should use biological information for determining impairments, how data can be screened according to its quality and quantity, or how impairment decisions will be made for waters impacted by both pollutant and non-pollutant (e.g., habitat degradation) sources. In addition, the document is silent on when and where in the process states should review their underlying water quality standards (WQS), despite a recommendation in the National Research Council’s (NRC) total maximum daily load (TMDL) study that states should review their WQS earlier in the TMDL process. AMSA is preparing a Regulatory Alert, to be released shortly, with a detailed summary and analysis of the key features in the guidance. For a further explanation of AMSA’s positions with regard to the listing process, refer to AMSA’s TMDL White Paper at http://www.amsa-cleanwater.org/advocacy/7-18-01tmdlwhitepaper.pdf. A copy of the newly introduced guidance can viewed on EPA’s website at http://www.epa.gov/owow/tmdl/2002wqma.pdf.

States Given Flexibility in Meeting Nutrient Criteria Deadline
On November 14, Geoff Grubbs, Director of EPA’s Office of Science and Technology (OST) issued a memorandum providing additional guidance to states on the development and adoption of nutrient criteria into WQS. See Regulatory Alert 01-20. The memorandum, entitled Development and Adoption of Nutrient Criteria into Water Quality Standards, was developed in direct cooperation with state representatives. The document incorporates many of the recommendations AMSA has advocated since the first criteria were published in January 2001.

Though EPA has always intended the national nutrient criteria to serve as starting points for states in developing their own criteria, AMSA did not believe that the existing guidance adequately explained what flexibility states would have to deviate from EPA’s methodology. AMSA believed that the lack of guidance, coupled with the rigid deadline for states to develop their own criteria by 2004, would lead to states adopting the national nutrient criteria by default. Simple adoption of the national criteria would short circuit a more detailed, state-specific criteria development process, and result in criteria that would not relate to the designated uses the criteria is intended to protect. The new memorandum directly addresses these concerns. A copy of the complete memorandum and associated appendices can be viewed at: http://www.amsa-cleanwater.org/private/regalerts/ra01-20.cfm.

Whole Effluent Toxicity Comment Deadline Extended
On November 23, EPA published a notice in the Federal Register officially extending the comment period for the September 28 proposal taking action on a number of whole effluent toxicity (WET) test methods. Originally slated to end on November 27, the comment period was extended for 45 days to January 11, 2002. AMSA is currently developing an extensive set of comments that will, among other things, highlight numerous flaws in the Agency’s Interlaboratory Validation Study, including laboratory deviation from method procedures and data quality objectives, as well as the excessive method variability and poor completion rates that were encountered during the study. AMSA feels these serious flaws call into question EPA’s proposed action to approve the methods. For more information or to contribute to AMSA’s comment efforts, please contact Chris Hornback, AMSA, 202/833-9106 or chornback@amsa-cleanwater.org.

EPA Expected to Delay Decision on Chlorine Gas
AMSA expects that EPA will postpone a decision to reclassify chlorine gas as a restricted use pesticide until sometime in 2003. Reclassification would require that any entity using chlorine gas be certified by a state pesticide program, or be supervised by someone who has undergone such training. In December 2000, AMSA commented on the proposed action stating that the reclassification would result in duplicative training and certification requirements for wastewater treatment operators, and would not result in additional improvements in the safe handling and application of chlorine gas. EPA plans to use the additional time to ascertain what burden these requirements may have on states. AMSA will continue its efforts to demonstrate that existing training programs under the Clean Air Act (CAA) Section 112(r) Risk Management Program (RMP), the Occupational Safety & Health Administration (OSHA) Process Safety Management Program, and any state-specific training programs are more than adequate to ensure the safe handling and application of chlorine gas. If your state has a comprehensive training/certification program that encompasses chlorine, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org. A copy of AMSA’s December 2000 comments can be viewed at: http://www.amsa-cleanwater.org/private/legreg/outreach/Cl212-15-00.pdf.

AMSA Prepares Comments on Mercury Method 1631 Revisions
On October 9, EPA published a notice in the Federal Register soliciting comments on several revisions to EPA Method 1631, Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence Spectrometry (Method 1631C). While AMSA supports enhancements in the quality control provisions, the Association is concerned that many of the proposed changes negate the Performance Based Method System approach and add unnecessary and potentially very costly requirements to the already expensive procedure. One of the Association’s primary concerns is the seemingly disparate approach EPA has taken, allowing on the one hand permitees to treat some procedures as optional, while, on the other hand, mandating the same procedures for all regulatory/control authorities. For more information or to contribute to AMSA’s comments efforts, please contact Chris Hornback, AMSA, 202/833-9106 or chornback@amsa-cleanwater.org. Comments on the proposed revisions are due to EPA by December 10.

EPA Releases NODA on Concentrated Animal Feeding Operations
As a follow-up to EPA’s January 12, 2001 proposed National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, the Agency has issued a notice of data availability (NODA) on November 21. The January 12 proposal revised and updated the National Pollutant Discharge Elimination System (NPDES) provisions that define which operations are concentrated animal feeding operations (CAFOs) as well as establish permit requirements, and the Effluent Limitations Guidelines (ELG), or effluent guidelines, for feedlots (beef, dairy, swine and poultry subcategories), and technology-based effluent discharge standards for CAFOs. The NODA presents a summary of certain data received in comments since the proposal and describes how EPA may use these data in developing its final CAFO regulations. Due to the comments and data received, EPA is considering changes to certain aspects of the proposed CAFO rule, including changes to the technology options considered for regulation, as well as changes to the underlying data and methodology that EPA uses to estimate the costs and financial impacts associated with the regulation. A copy of AMSA’s comments on the January 12, proposal can be viewed at: http://www.amsa-cleanwater.org/private/legreg/outreach/7-30-01cafo.pdf. Comments on the NODA must be submitted to EPA by January 12, 2002.

 

Wet Weather

Sanitary Sewer Overflow Proposal to Move Forward
On November 7, at the AMSA-EPA Pretreatment Coordinators Workshop in Nashville, TN, EPA's Assistant Administrator for Water G. Tracy Mehan, III announced the Agency’s intention to move ahead with its sanitary sewer overflow (SSO) proposed rule. The SSO proposal will include the language from the Clinton-era, January 2001 regulation, which AMSA opposed (see http://www.amsa-cleanwater.org/private/legreg/outreach/060801whitmanletter.pdf) and which was subsequently withdrawn by the Bush Administration. Critically, EPA has committed to substantial revisions to the preamble that will include potential, alternative regulatory options for the SSO rule. The preamble revisions are critical because they will give the Agency additional justification to modify the rule, and give AMSA more of an opportunity to build the case for an alternative, especially with respect to the prohibition provisions. EPA is also suggesting the use of a post-proposal mediation process between key parties to resolve their differences. AMSA is supportive of a process that will fully take into account the concerns of POTWs and that will facilitate a more conducive forum for negotiating final rule components. Based on several meetings with Mehan and EPA officials, AMSA believes the Agency will take strides towards accounting for the concerns of municipal wastewater agencies. AMSA will work closely with EPA to ensure that, whatever process the Agency chooses, the rule will incorporate POTW concerns.

Combined Sewer Overflow (CSO) Report to Congress to be Released
AMSA has learned that the Office of Management & Budget (OMB) recently completed its review of EPA’s draft CSO Report to Congress, and that the Agency plans to release the Report imminently. Upon EPA’s official publication of the Report, AMSA will release its own supplemental CSO report, Communities At Work . . . CSO Companion Report. The CSO Companion Report summarizes data from the Association's recent CSO survey, and provides Congress and EPA with recommendations on how to move the program forward in the coming years. The CSO Companion Report recommends that EPA and Congress take action to: 1) provide new and increased technical and financial assistance; 2) develop guidance for states to conform with the National CSO Control Policy's approach; 3) develop new approaches to other wet weather discharges, such as SSOs based on the Policy's basic framework; 4) focus renewed energy and resources on reviewing the applicability of water quality standards to wet weather conditions; and 5) support greater use of urban watershed management principles to set priorities and proportionate accountability for removal of pollutants. AMSA will distribute the document to the membership, Congress, EPA, and the states.

 

Pretreatment

Pretreatment Streamlining Rule Delayed Until 2003 - AMSA’s pH Survey to Move Forward
EPA has announced that it is delaying action on the Pretreatment Streamlining proposal, originally released on July 22, 1999, until sometime in 2003. Citing a lack of resources and the need for additional information on the pH standard, EPA did not feel they could continue efforts to work on the rule this year. In an effort to fill the perceived pH data gap, AMSA has prepared a survey that will be distributed to the membership in the coming weeks. The brief survey targets some of the key issues EPA has identified for additional information, including the number of pH excursions between 4 and 5 and any detrimental effects on agency collection systems that can be attributed to such excursions. After receiving EPA’s concurrence on the survey content, AMSA will work to distribute, collect, and analyze the results. See also Regulatory Alert RA 99-22 for additional information. To see a copy of AMSA’s comments on the proposal go to: http://www.amsa-cleanwater.org/private/legreg/outreach/11-19-99NPSP.pdf

 

EPA Posts

EPA Assistant Administrator for Solid Waste and Emergency Response
Thomas Dunne was appointed on November 26 to the position of Assistant Administrator for Solid Waste and Emergency Response. The Office of Solid Waste & Emergency Response (OSWER) provides policy, guidance and direction for managing hazardous and solid waste, preparing for and preventing chemical and oil spills, and cleaning up contaminated property and counter-terrorism. Prior to his current appointment, Dunne was a Senior Policy Analyst and Project Manager for the OAO Corporation, where he managed contracts supporting EPA’s One Stop Program, which establishes a clearinghouse of environmental data for industries. Dunne is not new to the Agency, having worked both at Headquarters as Associate Administrator for regional and state relations and in Region X as Acting Regional Administrator.