AMSA December 2003/January 2004 Regulatory Update

Click here for previous updates.

The National Office of the Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the December 2003/January 2004 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 15, 2004. Unless another contact person is specifically listed, call Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or email him at chornback@amsa-cleanwater.org with any questions or input you have concerning the Update topics.

AMSA Conferences

Don’t Miss Your Chance to Attend AMSA’s Winter Conference in Los Angeles, California
Register now for AMSA’s Winter Conference, From Crisis to Opportunity… Strengthening Your Utility’s Assets, to be held in Los Angeles, Calif., February 3-6, 2004. This year’s Winter Conference will focus on many of the issues faced by today’s utility management, which, without action, could become crises. The conference will identify ways in which these issues can become opportunities to improve and strengthen particular utility assets. Look for discussions on Strengthening Your Workforce, including generational and changing workforce issues, and succession planning; Strengthening Your Facilities, including issues related to security, and infrastructure; and Strengthening Your Relationships, including a number of communication issues and strategies focusing on both internal and external communication. For hotel information and to register for AMSA’s 2004 Winter Conference, please visit the Association’s website at http://www.amsa-cleanwater.org/meetings/04winter/.

Biosolids

AMSA’s Comments Reflected in Final Agency Response to Research Council’s Biosolids Report
On December 31, 2003, the U.S. Environmental Protection Agency (EPA) issued its Final 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. 75531). In a show of support for the continued practice of the land application of biosolids, EPA’s response reiterated that the land application of biosolids in compliance with Part 503 is an appropriate biosolids management option for communities. EPA’s letter to the CDC is available at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-12-23EPACDC.pdf. EPA’s review of the existing biosolids regulations, based on a screening assessment of chemical pollutants for which EPA had adequate data, as well as concentration data in biosolids for those pollutants, identified 15 pollutants for further investigation. As required by the Clean Water Act, these pollutants will undergo a more refined risk assessment and risk characterization which may lead to a notice of proposed rulemaking. EPA also sent the Centers for Disease Control and Prevention a letter on December 23, 2003, seeking their help in conducting human health incident reporting, tracking, and follow-up investigations to help further reduce any uncertainties related to human health claims linked to land applied biosolids, one of the National Research Council’s (NRC) major recommendations. EPA’s response to the NRC is in line with AMSA’s comments filed on EPA’s draft response to the NRC Report on July 8, 2003, which can be found on the Association’s website at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-07-08cmts.pdf. For more information on EPA’s final response please see AMSA’s Regulatory Alert 04-02 available at http://www.amsa-cleanwater.org/private/regalerts/ra04-02.cfm. AMSA will discuss next steps on these issues further at its February Winter Conference during the Biosolids Management Committee meeting.

AMSA Applauds EPA’s Denial of the Food Safety Petition to Ban Land Application of Biosolids
Also on December 31, 2003, EPA denied an October 7, 2003 Center for Food Safety (CFS) petition, which called for an immediate moratorium on the land application of biosolids, along with rule making to eliminate land application as a permitted practice. The Agency, in examining the information provided in the petition, found that there was “no evidence to substantiate the claims…concerning land-applied sewage sludge.” EPA based its decision on the fact that the petition does “not present scientifically-based evidence or documentation that links the land application of sewage sludge or chemical pollutants allegedly contained in sewage sludge to human health and environmental impacts.” This decision came after AMSA led an effort to organize a coalition of biosolids stakeholders that included, among more than a dozen others, the United States Conference of Mayors, National League of Cities, and the Water Environment Federation, which sent a joint letter on October 24 to EPA’s Acting Administrator, Marianne Horinko, urging the Agency to deny the CFS petition. The coalition letter can be found on AMSA’s website at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-10-24resp.pdf. EPA’s denial of the CFS petition is at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-12-31petition.pdf.

Pretreatment

AMSA and Industry Efforts Result in Centralized Waste Treatment Guideline Changes
On December 22, 2003, EPA published a final rule which revised the Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards for the Centralized Waste Treatment Point Source Category (CWT ELG) (68 Fed. Reg. 71014, found at http://www.epa.gov/fedrgstr/EPA-WATER/2003/December/Day-22/w31346.htm). The final rule deleted numerous metals from various subcategories of the CWT point source category, including the selenium limitations and standards from the Metals Treatment and Recovery subcategory, the barium, molybdenum, antimony, and titanium limitations and standards from the Oils Treatment and Recovery subcategory, and finally the molybdenum, antimony, aniline, and 2,3-dichloroaniline limitations and standards from the Organics Treatment and Recovery subcategory. AMSA had met with the Agency in August 2003 to urge them to remove the molybdenum limits from the Organics subcategory in addition to the other potential changes the Agency was considering. AMSA also submitted comments to the Agency on October 10, 2003, noting that molybdenum and other metals cannot be effectively removed by the biological treatment process, the process on which EPA based its limitations for the organic subcategory. The Association cited the unnecessary financial burden that would be associated with monitoring and enforcing these limits for POTWs. The Agency’s final rule was in line with AMSA comments, which can be found at http://www.amsa-cleanwater.org/advocacy/comments/2003-10-10CWTComments.pdf. For more information, please contact AMSA’s Regulatory Analyst, Will Pettit, at 202/833-3280 or wpettit@amsa-cleanwater.org.

AMSA to Provide Comments on EPA’s Draft Effluent Guideline Plan for 2004/2005
On December 31, 2003, EPA published its Preliminary Effluent Guidelines Program Plan for 2004/2005 (ELG Plan) (68 Fed. Reg. 75515). At the same time, the Agency presented the results of its annual review of all ELGs that have been promulgated under section 304(b) of the Clean Water Act and solicited comments on the analytical framework used to conduct the annual review. The Agency is required in its ELG Plan to identify categories of sources discharging toxic or non-conventional pollutants for which EPA has not promulgated ELGs. From that list, the Agency identified no new candidates for ELG rulemaking in the latest ELG Plan. EPA’s 2003 annual review identified two industrial categories that the Agency plans to investigate more fully. EPA plans to perform detailed analyses of technology innovations and process changes, and potential revisions to existing ELGs, in the Organic Chemicals, Plastics, and Synthetic Fibers, and Petroleum Refining industrial categories during its 2004 annual review.

To learn more about the ELG Plan and accompanying notices, and to provide comments, please see AMSA’s Regulatory Alert 04-01 at http://www.amsa-cleanwater.org/private/regalerts/ra04-01.cfm. EPA is accepting comments on the notice through February 17, 2004. The Agency will also host a public meeting in Washington, D.C. on January 28, 2004 from 9am to 12pm to discuss the ELG Plan with stakeholders. AMSA will participate in this meeting and interested AMSA member agency representatives should also attend. To facilitate the Association’s comment effort, AMSA asks members to provide input by February 10, 2004. Please direct any comments or questions to Will Pettit, AMSA’s Regulatory Analyst, at 202/833-3280 or wpettit@amsa-cleanwater.org.

Water Quality

New EPA Administrator’s 500 Day Plan Silent on Several Key Water Rules
In early December 2003, draft versions of EPA Administrator Mike Leavitt’s 500 Day Plan surfaced with no mention of several contentious water rules. Most notably, the plan left out any discussion of the Agency’s plan to clarify its jurisdiction under the Clean Water Act following the Supreme Court’s ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, and EPA’s ongoing effort to propose its Watershed/Total Maximum Daily Load Rule. The decision in the SWANCC case was thought to narrow federal jurisdiction over isolated waterbodies, or wetlands, but, as Leavitt’s plan foreshadowed, the rulemaking effort initiated in January 2003 was dropped on December 16, 2003 by EPA and the U.S. Army Corps of Engineers. Instead, Leavitt’s draft plan promises to gain one million acres of wetlands, but gives no timetable.

The plan also makes no mention of the Agency’s Watershed Rule. As AMSA has noted, the rule is still undergoing informal review at the Office of Management and Budget. Its absence in Leavitt’s plan may suggest that EPA’s proposal of the rule may be on hold until after the November elections. AMSA will provide members with updates on the Watershed Rule as developments occur.

EPA Releases Updated Water Quality Criteria on Fifteen Pollutants, Two Aquatic Life Criteria
On December 31, 2003, the Agency published three separate notices regarding new or revised water quality criteria. EPA released updated national water quality criteria for the protection of human health for fifteen pollutants: chlorobenzene; cyanide; 1,2-dichlorobenzene; 1,4-dichlorobenzene; 1,1-dichloroethylene; 1,3-dichloropropene; endrin; ethylbenzene; hexachlorocyclopentadiene; lindane; thallium; toluene; 1,2-transdichloroethylene; 1,2,4-trichlorobenzene; and vinyl chloride (68 Fed. Reg. 75507). These updated criteria are based on EPA’s 2000 methodology, and replace previous water quality criteria. The criteria can be found at http://www.epa.gov/fedrgstr/EPA-WATER/2003/December/Day-31/w32211.htm. Additionally, EPA is seeking scientific input on draft aquatic life criteria documents for diazinon and copper. Comments are due by March 30, 2004 on the diazinon criteria, which can be found at http://www.epa.gov/waterscience/criteria/diazinon/draft-doc.pdf.

The Agency is seeking scientific input on the updated aquatic life criteria for copper by March 1, 2004. In addition to incorporating new data to update the criteria, the biotic ligand model (BLM) was used for the first time in the criteria derivation procedures. AMSA will discuss the copper criteria in more detail at its upcoming Winter Conference during the Water Quality Committee meeting to develop an Association response and provide input into EPA’s initiative. The draft copper criteria can be found at http://www.epa.gov/waterscience/criteria/copper/pdf/master.pdf.

Wet Weather

AMSA Members Eligible for 104(b)(3) Grants for Wet Weather and Other Projects
On December 18, 2003, EPA announced the availability of federal assistance for water quality cooperative agreements under Section 104(b)(3) of the Clean Water Act (68 Fed. Reg. 70502). The notice requests initial proposals from states, tribes, local governments, universities, nonprofits, and other eligible entities for federal assistance for water projects that address requirements of the national pollutant discharge elimination system program, with special emphasis on storm water, combined sewer overflows, sanitary sewer overflows, concentrated animal feeding operations, and projects that help the regulated community deal with nontraditional pollution problems in priority watersheds. The Agency intends to award an estimated $3.5 million in agreements, ranging in size from $10,000 to $500,000. EPA also intends to make at least $200,000 available per year from fiscal year 2004 through 2005 for projects that address cooling water intake issues. Initial proposals are due to EPA by February 17, 2004. The Agency contact, Barry Benroth, can be reached at 202/564-0672. AMSA encourages the membership to apply for these cooperative agreements and other EPA funding sources that are detailed at http://www.epa.gov/water/funding.html.

AMSA Continues to Push for Blending Guidance, Comment Deadline Extended on Draft Policy
On November 7, 2003, EPA released for public comment its draft blending policy (68 Fed. Reg. 63042) which provides a proposed interpretation of the bypass provision (40 CFR 122.41(m)) as it applies to alternate wet weather treatment scenarios at POTWs that use blending. EPA’s proposal clarifies that blending is not a prohibited bypass and can be authorized in a National Pollutant Discharge Elimination System (NPDES) permit if six key “principles” are followed. The policy’s main substance — the six principles — and a number of other specific issues on which EPA is seeking comment are detailed in Regulatory Alert 03-14 found on AMSA’s Correspondence & Outreach website at http://www.amsa-cleanwater.org/private/regalerts/ra03-14.cfm.

To show support of the proposed blending policy, AMSA filed comments with the Agency on January 9, 2004. These comments are available on the Association’s website at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-01-09BlendingComments.doc. The Association urges members to submit comments supporting EPA’s blending policy by the extended February 9, 2004 deadline. Activist organizations have already filed thousands of comments, so this effort is critical in terms of both comment quality and quantity. Member agencies can use the Association’s comments in whole or in part, cutting and pasting from the Microsoft Word document found at the link above. To submit comments on EPA’s blending policy simply send an e-mail to OW-Docket@epa.gov and insert the docket number, OW-2003-0025, in the subject line. For further comment submittal instructions, see the Agency’s Federal Register notice at http://www.epa.gov/npdes/regulations/blending_fr_notice.pdf.

Blending Becomes an Issue on Capitol Hill, AMSA Seeks Congressional Support
The blending guidance has also become a topic of significant attention on Capitol Hill. Activist groups, led by the Natural Resources Defense Council, sent a letter on January 12, 2004, (http://www.amsa-cleanwater.org/private/legreg/outreach/2003-12-18anit-blendingletter.pdf) with the signatures of 64 House members favoring a prohibition of the practice of blending. To counter this effort, AMSA has scheduled dozens of meetings in the next two weeks with high ranking members of Congress, including various signatories to the Pallone letter, to express the importance of the policy and to clarify erroneous information provided by these activist groups, and began a congressional letter on behalf of blending. AMSA also strongly urges Association members to contact their Members of Congress and EPA officials on this critical issue as soon as possible.

AMSA efforts have not gone unnoticed. The leaders of House Transportation and Infrastructure Committee sent a letter to EPA Administrator, Mike Leavitt, supporting the policy “as an important step towards a reasonable and protective means for addressing peak wet weather flows at POTWs. The final policy should clarify that, as long as existing regulatory requirements and NPDES permit limits are met, blending constitutes an environmentally safe practice.” The House letter can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/2004-01-07Blending_letter.pdf.

AMSA Organizes Coalition of Over 20 Municipal Groups in Support of Blending
AMSA has also developed a municipal coalition letter in support of blending, which was sent to Leavitt and Capitol Hill on January 14, 2004. The National League of Cities, the National Association of Counties and over 20 other regional and national groups have already lent their support, with additional groups expected to sign on soon. The coalition letter is available at AMSA’s Regulatory Correspondence & Outreach website at http://www.amsa-cleanwater.org/private/reg_outreach.cfm. Through these numerous efforts, AMSA intends to ensure the broadest possible support for the blending policy and its ultimate finalization.

EPA’s CSO/SSO Report to Congress Delayed, AMSA to Draft Strong Response
AMSA has learned that the Agency did not meet its court ordered deadline of December 15, 2003 for delivering its Report to Congress on combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs). Evidently, the report was reworked due in part to the concerns AMSA raised in its August 21, 2003 letter on the stakeholder meetings, found at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-08-21RTC.pdf, resulting in the delay. The revised report was expected to be sent to the Office of Management and Budget by January 1, 2004 and the final report should be sent to Congress in February or March. AMSA continues its efforts to draft a response report to EPA’s Report to Congress and will discuss these issues further during its Winter Conference at the Wet Weather Issues Committee meeting in February.

EPA Staffing

AMSA Tracks Numerous Staff Changes at EPA Headquarters
In the last months, EPA has undergone several major staff changes, starting with the resignation of Administrator Whitman and the swearing in of the new Administrator, Mike Leavitt. Next to depart the Agency was G. Tracy Mehan, III, the Assistant Administrator for Water, who announced his resignation late in November. On December 23, 2003, Leavitt announced that Benjamin Grumbles would serve as Acting Assistant Administrator, upon Mehan’s departure on December 29, 2003. Grumbles served under Mehan as Deputy Assistant Administrator for Water and most recently served as the Acting Associate Administrator for Congressional and Intergovernmental Relations. AMSA enjoyed a close working relationship with Mehan and the Office of Water on a host of key clean water priority issues, including blending, watershed permitting, infrastructure funding, security and biosolids issues, and will work to build upon its already strong relationship with Grumbles.

The next staff change within EPA came on January 5, 2004, when the Agency announced the resignation of John Peter Suarez, the Assistant Administrator for the Office of Enforcement and Compliance Assurance. Finally, the White House announced on January 7, 2004, that Stephen L. Johnson was nominated to succeed Linda Fisher as Deputy Administrator of EPA. Johnson previously served as the head of EPA’s Office of Prevention, Pesticides, and Toxic Substances. Before taking his new position, Johnson must be confirmed by the Senate.