Water Quality Issues
Background: Section 304(a) of the Clean Water Act, 33 U.S.C. 1314(a)(1), requires EPA to publish and periodically update ambient water quality criteria. These criteria are to accurately reflect the latest scientific knowledge on the kind and extent of all identifiable effects on health and welfare including, but not limited to, plankton, fish, shellfish, wildlife, plant life which may be expected from the presence of pollutants in any body of water. Water quality criteria developed under section 304(a) are based solely on data and scientific judgments on the relationship between pollutant concentrations and environmental and human health effects. These recommended criteria provide guidance for States and Tribes in adopting water quality standards under section 303(c) of the CWA.
Status: On December 10, 1998, EPA published a compilation of current, existing water quality criteria in the Federal Register. The compilation is presented as a summary table containing recommended water quality criteria for the protection of aquatic life and human health for approximately 150 pollutants. EPA also published changes to its process for deriving new and revised national water quality criteria and the Agency's intentions for periodically updating the compilation in the future. CONTACT: Cindy Roberts, U.S. EPA Health and Ecological Criteria Division, 202/260-2787).
EPA's Proposes Revisions to Human Health Methodology
Background: On August 14, 1998 EPA's published “Draft Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health” in the Federal Register. Among the changes presented in the proposal from the 1980 AWQC National Guidelines that may result in more restrictive water quality criteria include: 1) Replacing bioconcentration factors (BCFs) with bioaccumulation factors (BAFs); 2) Replacing the default fish intake rate of 6.5 grams/day to 17.8 grams/day (to protect the general adult population and sport anglers) and 86.3 grams/day (to protect subsistence fishers); 3) the addition of an incidental exposure rate of 0.01/liters/day to account for long-term incidental recreational ingestion where recreational waters are not used as drinking water sources. When finalized, the revised methodology will provide guidance to States for use in developing human health criteria as part of their water quality standards. In addition to the draft Federal Register notice, EPA has developed a Technical Support Document (TSD). The TSD includes more technical detail and is supplemented by three proposed criteria developed using the new methodology.
Status: On December 14, 1998 AMSA submitted comments on EPA's proposed, “Draft Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health.” In its comments, AMSA supported revision of the existing criteria for water quality, noting that information and data collected during the past 18 years should be utilized. AMSA did note, however, that revised criteria should be based upon sound science and superior quality data. AMSA members had particular concerns regarding development of site specific criteria and use of bioaccumulative factors in criteria derivation. AMSA's comments reflected the Association's belief that additional data and research are required to derive scientifically defensible ambient water quality criteria, and that steps should be taken to obtain the necessary information before new AWQC are implemented. EPA proposes to finalize the revised methodology sometime in 1999. It is anticipated that, when finalized, the revised methodology will provide guidance to States for use in developing human health criteria as part of their water quality standards. CONTACT: Denis Borum, EPA 202/260-8996 or Mark Hoeke, AMSA 202/833-9106.
EPA's Water Quality Standards Regulation Revision Process - Advanced Notice of Proposed Rulemaking
Background: On July 7, 1998 EPA's published an advanced notice of proposed rulemaking (ANPRM) on water quality standards regulation in the Federal Register (Regulatory Alert RA 98-15). The ANPRM requests public comment on EPA's current thinking on possible regulation and policy changes to strengthen and modernize the water quality standards regulation, including facilitating a watershed approach. Six core areas are discussed in the document, including: designated uses, criteria, anti-degradation, mixing zones, wetlands, and independent application. EPA has requested comment on these areas and is also accepting comments on any other aspects of the water quality program.
Status: On January 4, AMSA submitted comments on the EPA's Advanced Notice of Proposed Rulemaking (ANPRM) for revising the national water quality standards regulation. In its comments, AMSA discusses the need for regulatory change. AMSA supports EPA's overall vision that the water quality standards program needs to better promote watershed-based approaches, and emphasizes that changes need to provide flexibility to EPA, states, and the regulated community to target resources. AMSA urges EPA to ensure that regulatory modifications and efforts to encourage involvement of unregulated nonpoint source dischargers do not unfairly lead to a disproportionate increase in requirements on permitted dischargers, due to lack of EPA and state authorities to control nonpoint source pollution. In the comments, AMSA also affirms that many problems associated with attainment of water quality standards, as well as permitting issues, are associated with inappropriate use designations. AMSA urges that States have the latitude to refine use categories to differentiate between diverse uses, such as swimming vs. wading, which could be protected by very different criteria. AMSA goes further to recommend that States be mandated to refine uses where appropriate, and to perform use attainability analyses for those waters that have been inappropriately designated. Copies of AMSA comments can be obtained on AMSA's Web Site or by contacting the National Office. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Sue Gilbertson, EPA 202/260-9536.
EPA to Address Water Quality Standards Review Process
Background: EPA's water quality standards regulation at 40 CFR Part 131 currently provides that state and tribal water quality standards are in effect until EPA promulgates a federal rule to supersede the state or tribal water quality standard. EPA's regulation is based on its longstanding interpretation of section 303 (c) of the Clean Water Act. In July 1997, the U.S. District Court for the Western District of Washington issued an opnion which held that the clear meaning of section 303(c)(3) of the CWA was that State water quality standards do not go into effect under the CWA until approved by EPA (Alaska Clean Water Alliance v. Clark; No. C96-1726R). The CWA provides EPA with 60 days to approve, and 90 days to disapprove water quality standards submitted by states and tribes. If a state or tribe does not rectify a standard within 90 days after EPA's disapproval, the CWA requires EPA to “promptly” propose new water quality standards. EPA has not always been able to meet these deadlines, and is now working on eliminating delays and reducing any backlogs. Because EPA's existing regulation remains in effect, and the court has issued no injunction against applying it, EPA's interim policy is to continue to follow the regulation (except in Alaska) until the regulation is changed.
Status: As a result of the court decision, EPA is taking steps to address the current backlog in current water quality standards reviews and may propose a rulemaking to streamline the water quality standards review process to avoid future litigation. EPA is concerned with the implications of the Alaska case citing in a fact sheet that modified state water quality standards that are less stringent than existing standards would need EPA action before they could be used, even if they are based on better science. Modified standards that are more stringent than existing standards could go into effect immediately. EPA reviews and follow-up of disapprovals has not been expeditious in the past. According to EPA, there are currently 18 outstanding disapprovals of state water quality standards, 54 modified standards submissions pending EPA decision, 5 overdue Endangered Species Act consultations, and 30 overdue state triennial reviews of water quality standards required by the Clean Water Act. Thus far, EPA has committed to establishing a water quality standards docket in each region to maintain a strong administrative record and assist courts in future litigation, and to clearing the backlog of overdue EPA actions.
National Water Quality Monitoring Council
Background: The National Water Quality Monitoring Council (Council) serves as the major national forum for the coordination of consistent and scientifically defensible federal and state water quality monitoring methods and strategies. Such strategies are intended to improve understanding of different impacts, such as polluted runoff and habitat alteration, on water quality and to define a national agenda of needed monitoring, research, and assessment models and tools. AMSA is represented on the Council by Norm LeBlanc, Hampton Roads Sanitation District, and Bob Berger of the East Bay Municipal Utility District.
Status: The Council recently established five goals, with accompanying objectives and specific tasks, to meet important program needs, with a special emphasis on supporting the needs of watershed management. The resulting assessments, summaries and guidance should provide fundamental information useful to the monitoring community at many levels. These goals will help in implementing the objectives and programs outlined in the Clean Water Action Plan, as well as other important programs such as Source Water Protection, Total Maximum Daily Loads, and concerns about ground water. The Council's next meeting is scheduled for January 27-28 in Phoenix, Arizona. CONTACT: Chuck Spooner, EPA 202/260-1314, or Mark Hoeke, AMSA 202/833-9106.
Streamlining 301(h) Waiver Renewal Requirements - Anticipated Proposed Rule
Background: EPA is proposing to amend the Clean Water Act section 301(h) regulations. This proposal is designed to streamline the renewal process for POTWs with 301(h) modified permits. Section 301(h) provides POTWs discharging to marine waters an opportunity to obtain a modification of secondary treatment requirements if they demonstrate to EPA that they comply with a number of criteria aimed at protecting the marine environment. A proposal is planned for August 1999.
Status: On Dec. 23, EPA published plans to submit a continuing Information Collection Request (ICR) to the Office of Management and Budget (OMB) for the 301(h) program. The ICR estimates an annual average burden of 71,049 hours for the 55 affected entities (municipalities that currently have section 301(h) waivers from secondary treatment, have applied for a renewal of a section 301(h) waiver, or those with a pending section 301(h) waiver application, and the states within which these municipalities are located) of the program. Comments on the ICR are being accepted until February 22, 1998. CONTACT: Virginia Fox-Norse, EPA 202/260-8448
Whole Effluent Toxicity Inter-laboratory Variability Study
Background: As a result of a recent settlement agreement between EPA and the Western Coalition of Arid States (WESTCAS) concerning EPA's whole effluent toxicity (WET) test method, EPA has agreed to perform an inter-laboratory WET study to assess and validate a recently completed study of test method variability sponsored by WESTCAS. The WESTCAS study quantified the level of biological variability which is intrinsic to whole effluent toxicity test organisms and test procedures. The WESTCAS study attempted to determine the rate of false-positive whole effluent toxicity (WET) test results on method blank samples containing no toxicants of any kind. Of the sixteen laboratories which participated in the WESTCAS study, 40 percent concluded that the non-toxic sample water was toxic based on reproductive effects. In AMSA Regulatory Alert RA 98-16, members were requested to participate in EPA's follow up inter-laboratory WET study. Over 80 AMSA member agencies offered to participate.
Status: EPA is currently evaluating peer review comments on the study design. The most current version of the study design being peer-reviewed is posted at http://www.toxicity.com. While the study design does not allow for truly “blind” participation of the laboratories due to the need for laboratory pre-qualification and direct shipment of study samples from referee labs to participant labs, AMSA members will still be asked to participate in sponsoring the tests. Pre-qualification packages are planned to be mailed in March 1999. CONTACT: Mike Garel, DynCorp 703/461-8056, Bill Telliard, EPA 202/260-7134 or Mark Hoeke, AMSA 202/833-9106.
FWS and NOAA Draft Biological Opinion for Proposed California Toxics Rule
Background: On April 10, 1998, the FWS and NMFS issued a draft biological opinion on the California Toxics Rule (CTR) which includes findings that the proposed criteria will jeopardize the continued existence of 20 species and includes recommended reasonable and prudent alternatives be undertaken to remove the jeopardizing effects of the proposed action. In the opinion, the FWS and NMFS, question the adequacy of: 1) proposed acute and chronic selenium criteria; 2) proposed aquatic and human health criteria for mercury; 3) proposed criteria for pentachlorophenol; 4) factors used in the proposed formula based metals criteria (i.e, water effect ratio, total-to-dissolved conversion factors, and hardness dependency) and, 5) the use of translators to convert dissolved criteria into total-recoverable permit limitations. The FWS and NMFS cite a significant number of published scientific literature in establishing a basis for the jeopardy opinion. Among the reasonable and prudent alternatives which have been recommended to EPA include: 1) reducing the chronic selenium criteria from 5 ug/l to 2 ug/l; 2) promulgating a total mercury criterion of 2 ng/l within the range of 8 affected species; 3) deferring promulgation of metals criteria on a dissolved basis; and, 4) deferring approval of site-specific water effect ratios. In addition to these recommendations, FWS and NMFS also recommend that EPA promulgate revised criteria based on bioaccumulative effects of selenium and mercury by June 2000 and perform additional review of metals formula criteria methodologies to ensure species are protected. The draft opinion will have national implications that may be addressed in a draft inter-agency memorandum of agreement (MOA) which describes EPA, FWS, and NMFS coordination in ensuring that Clean Water Act programs protect endangered or threatened species due to be published for comment at the end of January 1999.
Status: On July 28, 1998 AMSA sent a letter to the Office of Water in support of recent comments submitted by a coalition of California municipalities and municipal interest groups regarding the USFWS and NMFS Draft Biological Opinion for the Proposed California Toxics Rule (CTR). EPA Region 9 recently indicated that any changes to the CTR resulting from the Biological Opinion will require a new public notice for the CTR. EPA believes that negotiations with USFWS on the revised CTR Biological Opinion will avoid a “jeopardy opinion” and that the agencies seem to agree between themselves on selenium criteria. USFWS also recently indicated that it is working on a revised Biological Opinion heading in a “slightly different direction than the draft Biological Opinion.” The indication was that USFWS and EPA are aware of the need to conform to EPA's national effort for a site-specific approach to selenium criteria. Any continued disputes between the agencies after the issuance of USFWS revised Biological Opinion, will be elevated to the national level. If the continued disputes between the agencies on water quality criteria for metals other than selenium cannot be resolved, EPA may withdraw the CTR standards for the disputed metals. It is expected that a revised CTR and Biological Opinion should be released by the end of January 1999. No public comment period for the revised Biological Opinion is planned. CONTACT: Mark Hoeke, AMSA 202/833-9106
EPA Nutrient Strategy
Background: On June 18, 1998, in response to an Clinton administration directive to implement a criteria system for nitrogen and phosphorus runoff for lakes, rivers, and estuaries by the year 2000, EPA released a national strategy outlining the process and approach for the development of numeric criteria for nutrients and adoption of nutrient provisions of state water quality standards. Under the approach described in the new nutrient strategy, EPA will develop nutrient guidance documents for various types of waterbodies (e.g. rivers, lakes, coastal waters, and wetlands) over the next several years. States will be able to use these guidance documents and target ranges as they develop numeric criteria for nutrients as part of state water quality standards. EPA has formed a National Nutrient Team to guide the nutrient criteria development process and is also forming Regional Nutrient Teams in each EPA region. The Strategy was transmitted to the membership via Regulatory Alert RA 98-13, and is also available on EPA's web site at http://www.epa.gov/OST.
Status: EPA headquarters is currently holding meetings with EPA regional and state permitting agencies to discuss the process for developing regional nutrient criteria as explained in the nutrient strategy. EPA is also planning a national stakeholders meeting for Spring 1999. EPA plans to follow the basic direction of the Clean Water Action Plan, which requires EPA to develop nutrient criteria by 2000 for different ecoregions and waterbody types. In addition to the Spring stakeholders meeting, EPA plans to also develop a web site which will display all public comments on the strategy, upcoming activities and meetings, and progress to date in data collection and analysis. CONTACT: Bob Cantilli, EPA 202/260-5546 or Mark Hoeke, AMSA 202/833-9106.
EPA Proposes New Analytical Methods for Mercury
Background: In the May 26, 1998 Federal Register, EPA published a proposed new analytical method for mercury, EPA Method 1631; Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Fluorescence. EPA Method 1631 is approximately 1,000 times more sensitive than currently approved methods for determination of mercury. Method 1631 would need to be used in conjunction with clean sampling and laboratory techniques to preclude contamination at the low part per trillion (ppt) levels necessary for mercury determinations. AMSA submitted comments to EPA on the proposed method 1631 on July 27, 1998. AMSA comments reflected member concerns with the cost implications on POTWs in applying this method, the practical application of the method, and whether the method can be used to precisely and accurately quantify mercury in the ppt range in a wastewater or saltwater matrix. To address some of these concerns, AMSA petitioned EPA to revive validation work on draft Method 245.7. Method 245.7 uses the same protocols described in 1631, without requiring the use of ultra-clean sampling techniques and a gold trap. The use of clean sampling techniques was cited by AMSA member agencies as one of the major costs associated with Method 1631. AMSA noted that most POTWs could use Method 245.7 and still obtain a low detection limit at 2 to 4 ng/l.
Status: Due to concerns raised on the proposed analytical method, EPA is delaying finalization of Method 1631 until June 1999. As per AMSA's petition request, EPA plans to move forward and complete validation of Method 245.7. AMSA forwarded a list of nine agency laboratories willing to participate in the validation study. CONTACT: Maria Gomez-Taylor, EPA 202/260-1639 or Mark Hoeke, AMSA 202/833-9106.
AMSA Mercury Working Group
Background: For many parts of the country, POTWs are being faced with, or will soon be faced with, very low mercury effluent limits, due to application of very stringent water quality criteria. Many agencies are concerned that compliance will require the application of advanced treatment, and that these kinds of costly controls may not have much impact on resolving water quality issues. At the same time, it is EPA's belief that meeting these lower mercury levels should not be a problem for POTWs. EPA has stated that based on a study performed for nine POTWs in the Great Lakes states using new sampling and analytical methods, most POTWs should have mercury levels at 10 ppt or less, and that source control/pollution prevention (mainly controlling dentists and hospitals) will bring mercury levels down to anticipated regulatory levels of 1 to 2 ppt. Because there is commonality in the problems facing POTWs with regard to mercury, AMSA believes that a national strategy should be developed so that every individual POTW does not have to come up with an individual compliance solution. Also, AMSA believes that EPA's conclusions about mercury levels and the feasibility of source controls are based on limited data, and may not be representative of POTWs nationwide. The group is currently composed of representatives from 20 municipalities nationwide.
Status: To further advocate the development of a national policy and to substantiate our concerns, AMSA's Workgroup will be preparing a series of white papers addressing the following issues: 1) mercury profiles for POTWs beginning with identifying the range of mercury concentrations in POTWs using data obtained with sensitive sampling/analytical methods for comparison to EPA data; 2) source characterizations to quantify where mercury is really coming from, and if there regional variability; 3) evaluate the feasibility of source control/pollution prevention programs to achieve anticipated regulatory levels based on agencies that have programs in place; 4) characterize the contribution of mercury from POTWs to the environment vs other sources; 5) evaluate other control/treatment options and costs; and, 6) provide recommendations on potential regulatory options, national control strategies, etc. The Workgroup is currently compiling low level mercury data solicited from the membership to identify the range of mercury concentrations from POTWs and collecting information characterizing the sources of influent mercury at POTWs. The Workgroup plans to meet with EPA's Office of Water on January 19, 1999 to discuss preliminary results of AMSA's mercury characterization, and request that EPA reevaluate the Great Lakes wildlife criteria for mercury based upon new data presented in EPA's 1998 Mercury Study Report to Congress. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Margie Nellor, Los Angeles County Sanitation District 562/699-7411.