AMSA Regulatory Update December 2004

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The Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the December 2004 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 4, 2005. Unless another contact person is specifically listed, call Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or e-mail him at chornback@amsa-cleanwater.org with any questions or input you have concerning the Update topics.

Top Stories

AMSA Meets with Water Chief on Pretreatment Streamlining, Wet Weather and Funding Issues
On December 20, AMSA met with the U.S. Environmental Protection Agency’s (EPA or Agency) Assistant Administrator for Water, Benjamin Grumbles, to discuss several key issues for the Association, including the pretreatment streamlining rule, the blending policy, a potential sanitary sewer overflow (SSO) policy, combined sewer overflow (CSO) issues, and clean water funding and sustainability issues. Also present at the meeting were Jim Hanlon, Director of the Office of Wastewater Management and Linda Boornazian, Director of the Water Permits Division.

Guy Aydlett, Director of Water Quality at the Hampton Roads Sanitation District, Virginia Beach, Va., and Chair of AMSA’s Pretreatment & Hazardous Waste Committee, provided the Association’s views on the Agency’s proposed pretreatment streamlining rule. Since the Agency initially proposed the rule in 1999, (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=1999_register&docid=fr22jy99-29.pdf), AMSA has strongly urged EPA to finalize it. At the meeting, Aydlett stressed the need for flexibility in converting traditional concentration-based limits to mass-based limits and for revised definitions of nonsignificant or de minimis categorical industrial users, among other key issues. Grumbles told the group that “the rule is neither buried nor on the front burner” and that he “understands the longstanding interest of AMSA” in the rule. No timetable was given for finalization of the rule, though such a schedule was called for in a recent Office of the Inspector General (OIG) report [see AMSA’s Regulatory Alert 04-17 at http://www.amsa-cleanwater.org/private/regalerts/ra04-17.cfm].

Although Grumbles stated that the Agency was committed to finalizing the blending guidance, he did not give a date certain for finalizing it, saying it was still “subject to continued internal review.” Henry Gillman, County Attorney for Miami-Dade County, and Vice Chair of AMSA’s Legal Affairs Committee, and John Chorlog, Assistant Director of Wastewater for the Miami-Dade County Water and Sewer Department, were on hand to give a valuable case study from their agency of the serious need for a consistent blending policy from EPA headquarters. Grumbles said the policy “needs buy-in” at the Administrator level, which could be affected by current Administrator Michael O. Leavitt’s pending departure from EPA to become head of the Department of Health and Human Services.

Also on the wet weather front, EPA did note that the Agency is considering addressing some SSO issues via guidance in lieu of a rule. Grumbles expressed interest in potentially “packaging” SSO guidance with the blending guidance, though he did not preclude the possibility of developing a separate SSO rule. Grumbles said such a guidance would “recognize the importance of Capacity, Management, Operations, and Maintenance (CMOM) programs” and potentially address notification and reporting issues. AMSA made it clear that the Association would welcome the opportunity to speak further with EPA on these issues.

The meeting concluded with discussions on EPA’s work to clarify language in the Wet Weather Quality Act of 2000 that states that all CSO permits "shall conform to" the CSO Control Policy and the EPA-wide efforts to take a closer look at funding and sustainability issues. AMSA will continue to advocate in support of the Association’s positions on each of these critical issues and will alert the membership of any developments as they occur.

Court Ruling Upholds Chronic WET Test Methods, Offers Guidance to AMSA Members
On December 10, the U.S. Court of Appeals for the District of Columbia Circuit (the court) upheld EPA’s chronic whole effluent toxicity (WET) test methods. In Edison Electric Institute v. EPA, the court found that EPA’s chronic WET test methods were adequately informed by science and public comment, and though not perfect, were subject to deference. The court’s opinion does, however, contain several statements that are helpful to AMSA members. For example, single WET test failures should not be used to bring enforcement actions; the invalidity of particular WET test results can be raised in enforcement actions; states should compensate for local conditions affecting toxicity such as flow at the permitting stage; and permittees can challenge permits that regulate at levels that pose only minimal risk to aquatic life. EPA recently released its draft WET implementation guidance [see related story below], which will provide AMSA with an opportunity to comment on how the Agency will manage the WET program going forward.

There is some discussion about seeking a rehearing of this case before a full panel of the D.C. Circuit due to several errors in the court’s opinion, particularly the court’s determination that mathematical calculations included in the challengers’ briefs to document significant WET test variability were wrong. Petitions for rehearing are due January 24, 2005. AMSA is still evaluating whether to seek a rehearing. The court’s decision and Legal Alert 04-11 provide more details on the case and are available on AMSA’s website (http://www.amsa-cleanwater.org/private/littrack/). For more information on the case, please contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.

Conference and Workshops

Register Today for AMSA’s 2005 Winter Conference on Sustainable Systems
Join your clean water colleagues in San Antonio, Texas, for AMSA’s 2005 Winter Conference, February 1 – 4, 2005, which will explore the theme of Sustainable Systems. AMSA’s Winter Conference has long served as a forum focusing on cutting-edge utility management issues, and this year’s program will examine ongoing and emerging issues that affect the management of public utilities across the nation. The conference program will focus on numerous areas of interest, including panels on sustainable infrastructure issues, improving management practices, rate-setting, and workforce-related concerns. Reserve your hotel accommodations today by calling the Westin La Cantera at 210/558-6500 to ensure the special room rate of $175 single/double. The deadline for hotel reservations is Friday, January 7, 2005. Registration and an updated agenda are available on AMSA’s website (http://www.amsa-cleanwater.org/meetings/05winter/).

AMSA’s 2005 Winter Conference will be preceded by a day-long AMSA/WERF Joint Research Priorities Workshop on publicly owned treatment work (POTW) research needs. If you are interested in attending the joint meeting, please contact Chris Hornback, AMSA’s Director of Regulatory Affairs, at 202/833-9106 or chornback@amsa-cleanwater.org. Register for the conference today on AMSA’s website (http://www.amsa-cleanwater.org/meetings/05winter/).

Permitting

Profiles of 33 State Permit Programs Posted Under “Permitting for Environmental Results” Initiative
On December 15, EPA posted detailed profiles of the Clean Water Act permitting programs for 33 states (http://cfpub.epa.gov/npdes/per.cfm). This comes as part of the Agency’s Permitting for Environmental Results (PER) initiative, which has received much attention within the Agency recently. EPA has worked with states since August 2003 to gather information on states’ National Pollutant Discharge Elimination System (NPDES) programs to assess the progress made. Some of the information in the state profiles includes the number of major and minor permitted facilities, state resources devoted to the program, the backlog of expired permits, and an outline of how the program is managed and implemented, among other things.

EPA’s PER initiative is based on three main components: 1) Integrity – ensuring that the permit programs have the information and tools they need to issue effective permits; 2) Program Efficiency – providing tools to the states and sharing information to streamline the permitting process to direct resources where they are needed in each watershed; and 3) Environmental Results – identifying environmentally significant permits, prioritizing, and reissuing them to improve water quality. The PER initiative is intended to help states address their increasing backlogs of expired permits that need to be re-issued. AMSA will monitor the progress of the PER initiative and report to the membership any relevant developments.

Water Quality

New Draft Aquatic Life Criteria for Selenium Available, AMSA to Comment
On December 17, EPA announced the availability of its revised draft ambient water quality criteria for selenium in the Federal Register (http://www.epa.gov/fedrgstr/EPA-WATER/2004/December/Day-17/w27665.htm). Stakeholders will have until April 18, 2005 to provide EPA with comments. Additional details, including a fact sheet and the draft criteria document, can be found on EPA's website (http://www.epa.gov/waterscience/criteria/selenium/).

The most significant change is the new fish tissue-based freshwater chronic criterion of 7.91 µg/g, dry weight in whole-body fish tissue. If fish tissue samples exceed 5.85 µg/g during summer or fall, the criterion states that fish should be monitored during the winter, reflecting the lower survival rates of some species during cold weather. Some stakeholders are indicating that the new criterion will provide relief in some parts of the country, but for other areas, particularly in the West where natural selenium levels are higher, the new criterion may result in the listing of more impaired waters. If EPA finalizes this criteria it will no doubt raise some of the same issues AMSA is facing with mercury, namely whether to convert this fish tissue number into a water concentration, for ease of implementation, using a bioaccumulation factor. EPA is seeking comment on implementation issues in addition to the criteria themselves.

The notice also contains revised acute criteria for both freshwater and saltwater expressed as a concentration in the water column. The draft revised selenium criteria will be discussed at the upcoming meeting of the Water Quality Committee, February 1, 2004 from 11:00 am to 12:15 pm during AMSA's 2005 Winter Conference in San Antonio, Texas. Look for a forthcoming Regulatory Alert for more information.

AMSA Prepares to Comment on EPA’s Draft WET Implementation Guidance
On December 28, 2004, EPA released for public comment its draft Whole Effluent Toxicity (WET) Implementation Guidance. A copy of the 109 page guidance can be downloaded from EPA’s website (http://www.epa.gov/npdes/permitbasics). In addition to its legal challenge to the validity of some of EPA’s WET methods [see related story above], AMSA has met with the Agency several times over the last few years to ensure that the certain issues that are currently complicating implementation of WET testing requirements and limits in Clean Water Act permits are addressed. AMSA is still reviewing the draft guidance and will issue a Regulatory Alert soon to provide its members with more details on what the guidance says, as well as a list of key issues for its members to address in their comments in the coming weeks. EPA has provided a 60-day public comment period on the guidance that will end on February 28, 2005.

EPA to Form FACA Committee on Detection/Quantitation Procedures
On December 29, 2004, EPA announced in the Federal Register its intent to conduct a public meeting on detection and quantitation issues and to form a committee pursuant to the Federal Advisory Committee Act (FACA) on developing detection and quantitation procedures. During the public meeting, to be held January 26, 2005 in Washington, D.C., EPA will present the findings and recommendations of a situation assessment report developed by a neutral third party on the policy and technical issues concerning the development of detection and quantitation procedures and the uses of those procedures in Clean Water Act programs. AMSA participated in the situation assessment and will attend the public meeting. The notice also requests nominations of qualified candidates for appointment to the Federal Advisory Committee on Detection and Quantitation Approaches and Uses in Clean Water Act Programs. EPA has expressed an interest in having POTW participation on the Committee and AMSA will work to nominate someone by the February 9, 2005 deadline.

Wet Weather

AMSA Voices Support for Blending in National Media and Capitol Hill
Blending continues to receive congressional and national media attention as EPA moves closer to finalizing its December 2003 proposed blending guidance [see related story at 1]. Several media outlets, including the Washington Post and Boston Globe, reported in early December on the Agency’s progress toward a final policy. AMSA Executive Director, Ken Kirk, and other key industry and local government officials were quoted supporting EPA’s efforts to finalize the blending guidance, noting the importance of the policy for the nation’s public wastewater treatment utilities. Unfortunately, most of the media coverage continues to mischaracterize the policy as an environmental “rollback” that will threaten public health. A complete listing of recent media articles addressing blending can be found on AMSA’s Clean Water Advocacy webpage (http://www.amsa-cleanwater.org/advocacy/news.cfm).

In a related matter, Representative Bart Stupak (D-MI), recently introduced legislation, the Save Our Waters From Sewage Act (HR 5421), aimed to block the blending guidance. AMSA responded in opposition to the legislation via a letter (http://www.amsa-cleanwater.org/advocacy/co/2004-12-0Stupakltr.pdf) and fact sheet to Rep. Stupak highlighting that blending has been a long-standing practice that “protects POTW biological units from washout, and homes and businesses from sewer backups, both of which have adverse environmental and public health consequences.” Stupak has indicated that he will reintroduce the legislation in the 109th Congress and possibly attach it to another bill to expedite its passage through Congress. AMSA will continue to advocate on behalf of a final blending guidance and is planning an aggressive legislative strategy for the new congressional session. AMSA will update members on new developments.

EPA Staffing

Bush Nominates Leavitt to Head Health and Human Services, EPA Science Chief Resigns
On December 13, President Bush nominated EPA Administrator Michael O. Leavitt to become the next Secretary of the Department of Health and Human Services. Potential candidates to replace Leavitt are too numerous to name, but Idaho’s Governor Dirk Kempthorne and White House Council on Environmental Quality Chairman Jim Connaughton are frequently mentioned as potential appointments to the post. It is unclear how this will affect the current suite of regulatory and legislative clean water initiatives AMSA is currently working on, but it could stall the finalization of some EPA policies, such as blending.

In other news, Assistant Administrator of the Office of Research and Development, Paul Gilman, stepped down late in 2004. The Bush administration is currently reviewing potential replacements. AMSA will alert the membership of new appointments to these positions when they are announced.