AMSA Regulatory Update January 2003

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AMSA’s National Office is pleased to provide you with the December 2002 – January 2003 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to January 17, 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. If you have any questions or comments, please contact the AMSA National Office at 202/833 AMSA or info@amsa-cleanwater.org.

AMSA’s 2003 Winter Conference Fast Approaching
This year’s AMSA management conference, The Evolving Public Utility… Leading the Workforce of Today, set for February 4-7 in scenic Santa Fe, New Mexico, will examine essential issues, developments, and trends that support effective utility leadership of the workforce of today … and tomorrow. In addition to the conference agenda, all of AMSA’s technical committees will be meeting throughout the week. Conference information is available online on AMSA’s web site at http://www.amsa-cleanwater.org/meetings.

Biosolids

AMSA Drafting Letter to EPA on National Research Council Part 503 Report
AMSA is preparing a letter to EPA’s Assistant Administrator for Water Tracy Mehan to outline the Association’s thinking on how EPA should respond to the biosolids report released last summer by the National Research Council (an arm of the National Academy of Sciences). The report, Biosolids Applied to Land: Advancing Standards and Practices, released July 2, 2002, makes a number of recommendations for additional scientific work to further reduce any lingering uncertainty regarding the land application of biosolids. EPA must respond to the report by April 2003, and outline an action plan for addressing the recommendations. The shear number of projects and initiatives suggested by the NRC is overwhelming, and AMSA hopes to help the Agency focus on those aspects of the report that would result in the greatest benefit. For further information on this effort, please contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

Pretreatment

AMSA Attends Public Meeting on Draft Effluent Guideline Strategy
On November 29, EPA released its Draft Strategy for National Clean Water Industrial Regulations (Draft Strategy) (67 Fed. Reg. 71165). The Draft Strategy describes a process to identify existing effluent limitations guidelines (ELGs) that EPA should consider revising, and to identify any industrial categories for which the Agency should consider developing new ELGs. EPA is required to carry out this review every two years under section 304(m) of the Clean Water Act. EPA intends this new strategy to guide ELG development once the Agency’s obligations under the existing consent decree with NRDC are completed. AMSA has already met with Agency officials on a number of occasions to further discuss the Draft Strategy. AMSA most recently attended a January 15 public meeting concerning the Draft Strategy in Washington, D.C. AMSA is currently soliciting member input in an effort to prepare comments on the Draft Strategy. Please see Regulatory Alert 02-23 on AMSA’s web site at http://www.amsa-cleanwater.org/private/regalerts/ra02-23.cfm. For additional information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

Water Quality

Whitman Signs Concentrated Animal Feeding Operations Final Rule
EPA announced on December 16 the release of its final rule establishing runoff controls for large livestock operations, or concentrated animal feeding operations (CAFOs). The rule has been sent to the Federal Register for publication. The final rule replaces the prior technology requirements and permitting regulations that are over 25 years old. The past regulations were out of date and did not establish adequate expectations for environmental performance. Implementation of this rule means that all large operations must apply for National Pollutant Discharge Elimination System (NPDES) permit coverage. EPA expects that approximately 11,000 facilities will apply by 2006. Currently, about 4,500 facilities are permitted. To help these livestock operations with additional costs, Congress included funding in the Farm Bill passed in 2002. For more information, visit EPA’s web site at http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm or contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Considers Next Steps on WET, Meets with Key EPA Officials
On November 19, EPA released its final Guidelines Establishing Test Procedures for the Analysis of Pollutants; Whole Effluent Toxicity Test Methods (67 Fed. Reg. 69951). In the final rule, EPA ratified approval of ten of the twelve test procedures for measuring the toxicity of effluents and receiving waters. These test procedures are commonly referred to as whole effluent toxicity or WET test methods. In addition, EPA revised some of the WET test methods to improve performance and increase confidence in the reliability of the results. EPA’s publication of this final rule satisfies settlement agreement obligations designed to resolve litigation over an earlier rulemaking that originally approved WET test methods.

The National Office has determined that many of the comments AMSA submitted on the earlier proposed rule were not adequately addressed by the final rule. As a result, AMSA met on January 10 with Geoff Grubbs, Director of EPA’s Office of Science and Technology, and Jim Hanlon, Director of the EPA’s Office of Wastewater Management, to outline the Association’s continuing concerns. Speaking on behalf of AMSA were Norm LeBlanc, Chief Technical Services, Hampton Roads Sanitation District, Virginia Beach, Va., and Chair of AMSA’s Water Quality Committee, and Jim Pletl, Environmental Scientist at Hampton Roads. LeBlanc and Pletl voiced key concerns, some of which can be mitigated by reasonable WET methods implementation by EPA, Regions, and the states, and others of which would require changes to the recently finalized methods. AMSA’s top concerns include: key elements of the WET test methods run counter to fundamental toxicological approaches; EPA’s improper use of a “zero toxicity” standard; the WET methods’ failure to include data quality objectives allowing POTWs to assess whether they have a good or a poor WET test; and the fact that one WET test failure is generally seen as “reasonable potential” to exceed WET criterion in the future, leading to WET permit limits for POTWs. AMSA informed EPA that the Association will ask its Board of Directors in February to approve the filing of a petition for review of the WET methods in the District of Columbia Court of Appeals by the April 2, 2003 deadline, preserving AMSA’s right to argue WET issues before a court if necessary. AMSA will keep members apprised of further WET developments. For additional information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Pressure Helps Move Watershed Rule Proposal Closer to OMB Review
AMSA has learned that the Office of Management & Budget’s (OMB) review of EPA’s proposed Watershed Rule, which would revise current requirements for the development of total maximum daily loads (TMDLs), may come sooner than originally thought. The rule had been held up as several farm groups negotiated with the administration on a number of nonpoint source-related issues. In December, AMSA and several industrial and agricultural interest groups met with senior administration staff to lobby for the issuance of the proposal. EPA now appears poised to send the proposed rule to OMB by January 15, 2003. EPA’s Assistant Administrator for Water, Tracy Mehan, has admitted that he expects the review process between OMB and the Agency to be extensive and complex.

In a related matter, EPA proposed to withdraw the 2000 Clinton Administration rule in the Federal Register (67 Fed. Reg. 79020) on December 27. This step was necessary because EPA must take final action on the withdrawal by the end of April to prevent the 2000 rule from going into effect. The 1992 TMDL rule will remain in place until the Watershed Rule is finalized. AMSA plans to use the comment opportunity to reinforce its key positions on TMDLs. Comments are due January 27, 2003. For further information, contact Alexandra Dunn, AMSA, at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Tracks EPA’s Formation of Watershed Management Council
Tracy Mehan outlined the creation of a management council to advance the watershed approach in a December 3, 2002 memorandum to EPA Administrator Whitman, Deputy Administrator Linda Fisher, then Associate Administrator of EPA’s Office of Policy, Economics, and Innovation, Tom Gibson, the Regional administrators, assistant administrators, and EPA office directors. The Watershed Management Council (WMC) will be comprised of EPA and Regional representatives, tasked with identifying barriers and developing opportunities to improve the Agency’s watershed approach. The memorandum outlined a number of the issues the WMC will focus on: Program Integration, Internal Management Systems, Funding Local Watershed Strategies, Local Capacity Building, Assistance to States and Tribes, Fostering Innovations, and Rulemakings and Guidances. Mehan hopes the WMC will not impose or specify a particular water management model, but rather support states in implementing the approaches they find work best for them. The members of the council were slated to be selected by the end of December 2002, and the first meeting will take place in late January 2003. AMSA will track the activities of the WMC and will inform members of any actions taken. For further information, contact Alexandra Dunn, AMSA, at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA to Review EPA’s Final Water Quality Trading Policy
On January 13, EPA published the final Water Quality Trading Policy (trading policy) (see 68 Fed. Reg. 1608). The trading policy seeks to support and encourage states and tribes in developing and putting into place water quality trading programs that implement the requirements of the Clean Water and federal regulations in more flexible ways and reduce the cost of improving and maintaining the quality of the nation’s waters. EPA's final Water Quality Trading Policy offers guidance to states on developing and implementing water quality trading programs. AMSA filed comments on the draft policy on July 15, 2002, which can be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/07-02comments.pdf. AMSA is currently reviewing the final Water Quality Trading Policy to determine the extent to which our comments were addressed. For further information, contact Greg Schaner, AMSA at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Reviews EPA Revision of National Water Quality Criteria
On December 27, EPA published a revision of fifteen of its recommended water quality criteria for protecting human health, developed pursuant to section 304(a) of the Clean Water Act (67 Fed. Reg. 79091). The revision is a partial update based on EPA's new methodology for deriving human health criteria. The fifteen criteria revised were: chlorobenzene; cyanide; 1,2-dichlorobenzene; 1,4-dichlorobenzene; 1,1-dichloroethylene; 1,3-dichloropropene; endrin; ethylbenzene; exachlorocyclopentadiene; lindane; thallium; toluene; 1,2-transdichloroethylene; 1,2,4-trichlorobenzene; and vinyl chloride. EPA also announced an updated compilation of recommended water quality criteria, which can be found on EPA’s web site at http://www.epa.gov/waterscience/humanhealth/. In the updated compilation, EPA partially revised 83 recommended water quality criteria for protecting human health. The fifteen criteria listed above are not part of the updated compilation. AMSA will discuss the revisions at the upcoming meeting of its Water Quality Committee at AMSA’s 2003 Winter Conference in Santa Fe and will comment if necessary before the February 25, 2003 deadline. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Tracks EPA Release of Numerous Nutrient Water Quality Criteria Documents
On January 6, EPA released two nutrient water quality criteria documents (68 Fed. Reg. 557 and 68 Fed. Reg. 560). The first is the final Nutrient Criteria Technical Guidance Manual: Estuarine and Coastal Marine Waters. This document gives State and Tribal water quality managers and others guidance on how to develop numeric nutrient criteria for estuaries and coastal marine waters. EPA recognizes that states and Tribes are in the best position to consider site-specific conditions in developing nutrient criteria, and therefore did not include such site-specific data in the guidance manual. While this guidance contains EPA’s scientific recommendations for developing regional nutrient criteria, it does not impose legally binding requirements. States retain the discretion to adopt other scientifically defensible approaches to developing regional or local nutrient criteria that differ from EPA’s recommendations. This document may be found on EPA’s web site at http://www.epa.gov/OST/standards/nutrient.html. AMSA filed extensive comments on this guidance (found on AMSA’s web site at http://www.amsa-cleanwater.org/advocacy/comments/12-11-01AMSAW-01-05%20Comments.pdf). AMSA is still reviewing the guidance to determine to what extent our comments were addressed.

EPA also released nine final section 304(a) ecoregional nutrient criteria documents for lakes, reservoirs, rivers, and streams within specific geographic regions of the U.S. (lakes and reservoirs in ecoregions 3, 4, 5, and 14, and rivers and streams in ecoregions 1, 4, 5, 8, and 10). The second notice also requested scientific information on three new section 304(a) ecoregional nutrient criteria documents (lakes and reservoirs in ecoregions 1 and 10, and rivers and streams in ecoregion 13). All of these documents may be found on EPA’s web site at http://www.epa.gov/waterscience/criteria/nutrient/ecoregions/.

AMSA’s Water Quality Committee continues to explore ways to influence the nutrient criteria development process and will consider the need to comment on the new documents. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Tracks EPA Release of Draft Water Quality Criteria for Tributyltin
On December 27, EPA published draft Ambient Aquatic Life Water Quality Criteria for Tributyltin (67 Fed. Reg. 79090). Required by section 304(a) of the Clean Water Act, these criteria represent EPA’s current recommendations to states to use as technical information in establishing their water quality standards which may form the basis for establishing water quality-based controls. EPA is seeking scientific and technical input on the draft water quality criteria for tributyltin (TBT) in accordance with the Agency’s process for developing or revising criteria (63 Fed. Reg. 68354). Initial review of the criteria by AMSA’s Water Quality Committee suggests that the new criteria may be extremely difficult to meet. The committee will discuss the criteria at its upcoming meeting in Santa Fe and decide whether to comment. The document may be found on EPA’s web site at http://www.epa.gov/waterscience/criteria/tributyltin. Scientific and technical input is due to EPA by March 27, 2003. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

Wet Weather

AMSA Tracks SSO Rule Progress as EPA Debates Regulatory Alternatives
AMSA has learned that the Administrator will be briefed in the coming weeks by the relevant EPA offices on the status of the proposed sanitary sewer overflow (SSO) rule, including the extent and description of various regulatory alternatives in the Agency’s preamble. This high level review is typically conducted prior to the final stages of rule drafting and may signal the imminent initiation of Final Agency Review (FAR) on the proposal. The FAR process requires all relevant EPA offices to comment on the proposal and reach consensus on the draft rule’s provisions and preamble discussion before releasing it to OMB. The FAR process usually takes about two weeks. OMB will then have 90 days to review the proposal. AMSA understands that EPA is hoping to begin the FAR process as soon as possible, but that the process will not begin until the Agency can arrive at a greater level of consensus internally on the preamble’s discussion of alternatives. The Administrator’s review at this time is thought to be an attempt to arrive at such consensus. Among the alternatives that are being considered for inclusion in the preamble is AMSA’s concept of using implementation of the capacity, management, operation and maintenance (CMOM) plans as the standard for SSO control, instead of the current zero overflow standard in the proposed rule. AMSA will keep its members informed of developments in the SSO arena as they occur. For further information, contact Greg Schaner, AMSA at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Learns of Possible Blending Guidance Revisions
AMSA has learned that EPA is contemplating revisions to the current draft blending guidance to more closely track the version the Agency previously proposed in December 2001 (see http://www.amsa-cleanwater.org/private/regalerts/ra02-01a.pdf). Over the past several weeks, the National Office had been hearing that as a result of input from the Office of Enforcement & Compliance Assurance the document was undergoing significant changes that would have negatively impacted POTWs, such as requiring a demonstration of “no feasible alternatives” to blending prior to authorization. Stemming in part from AMSA’s continued discussions with Assistant Administrator Mehan regarding the negative impact on POTWs of issuing a strict blending guidance, the Office of Water has taken a new look at the current draft document and has apparently requested that it be revised to parallel the December 2001 version. The Agency has been working on a revised draft for public comment for the past year, and recently announced that it will issue the document in March 2003. AMSA’s Wet Weather Committee will conduct a thorough review of the proposed guidance upon its issuance. The National Office will continue to press EPA staff for a flexible application of existing regulations that ensures compliance with secondary treatment limits and recognizes past federal and state authorizations of blending. For further information, contact Greg Schaner, AMSA at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Reviews EPA Summary of Workshop on Public Health Impacts of Sewer Overflows
On December 26, EPA released its Summary of the August 14-15, 2002, Experts Workshop on Public Health Impacts of Sewer Overflows (67 Fed. Reg. 78802). The workshop brought together a group of external and EPA experts in public health, epidemiology, and wastewater treatment to provide individual opinions and exchange information on the human health impacts caused by municipal combined sewer overflows and SSOs. The workshop responded in part to EPA’s finding that little data were available linking waterborne illness or other exposures to sewer overflows. The summary is available on EPA’s web site at http://www.epa.gov/npdes/pubs/expert_workshop_summary.pdf. AMSA will thoroughly review the summary in a forthcoming Regulatory Alert. For further information, contact Alexandra Dunn, AMSA, at 202/533-1803 or adunn@amsa-cleanwater.org.

EPA Staffing Issues

Whitman’s Top Aide Resigns, Robert Wayland Retires
AMSA has learned that Administrator Whitman’s top aide, Eileen McGinnis, resigned at the end of 2002 to return to New Jersey. Slated to replace McGinnis is the current Associate Administrator in the Office of Economics, Policy and Innovation, Tom Gibson. In turn, Jessica Furey, currently a Whitman counselor, will replace Gibson.

Additionally, the Director of the Office of Wetlands, Oceans and Watersheds, Robert Wayland retired as of January 3, 2003. The Assistant Administrator for Water, Tracy Mehan, appointed former Deputy AA, Diane Regas, to replace Wayland.