AMSA July 2002 Regulatory Update

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: August 23, 2002

AMSA’s National Office is pleased to provide you with the July/August 2002 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to August 23, 2002. 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 Summer Conference in Portland Advances Policy Priorities
AMSA’s Summer Conference in Portland, OR, Controlling Wet Weather Overflows…Challenges and Solutions, provided members with the opportunity to hear from a number of top wet weather and water quality professionals who shared their on-the-ground experience in dealing with wet weather problems. The conference addressed a number of areas including the sanitary sewer overflow (SSO) rule, peak flow capacity strategies, collection system operation and maintenance, water quality standards, and wet weather watershed management. Copies of many of the presentations are available on AMSA’s web site at http://www.amsa-cleanwater.org/meetings/02summer/.

 

Air Quality

EPA Adds Sewage Sludge Incineration to Area Source Category List
On June 26, EPA added 18 industrial processes, including sewage sludge incineration, to its Clean Air Act (CAA) section 112(k) list of source categories that, based on 1990 emissions data, contribute to 90 percent of the emissions of the 30 hazardous air pollutants (HAPs) of greatest concern in urban areas (67 Fed. Reg. 43112). The CAA’s urban area source provisions require EPA to identify the 30 HAPs of most concern in urban areas, and to list and regulate the industrial categories responsible for 90 percent of the emissions of those HAPs.

Based on 1990 data, EPA estimates that each of the 18 new categories contributes between four and 16 percent of the urban area emissions for at least one of the 30 HAPs. AMSA has provided EPA with data showing drops in sewage sludge incinerator (SSI) HAP emissions since 1990. While EPA was not able under the CAA to use this information in the listing action, the Agency will be able to
use AMSA’s data in any subsequent rulemaking activity. In litigation with the Sierra Club, to which AMSA is a party, EPA has offered to propose area source rules for the 18 categories in October 2009, and to finalize them in December 2010. The Sierra Club will not agree to this schedule. Accordingly, the parties will have to set a rulemaking schedule through briefing this fall before the District of Columbia District Court.

Notably, EPA’s listing of the 18 categories completes the process the Agency began via its 1999 Integrated Urban Air Toxics Strategy, in which it first identified the 30 HAPs of concern and listed 29 industrial categories, each of which was responsible for at least 15 percent of the total emissions of the 30 HAPs (64 Fed. Reg. 38706 (July 19, 1999)). Publicly owned treatment works (POTWs) were one of the 29 categories listed in 1999. On March 22, EPA proposed CAA § 112(k) regulations of “no control” for new and existing non-industrial area source POTWs (67 Fed. Reg. 13496). For area source industrial POTWs, EPA proposed that these facilities meet the same control requirements as major source industrial POTWs, and be exempt from CAA Title V permit provisions. AMSA supported EPA’s proposals in April comments. EPA will finalize the proposals by October. For more information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Biosolids

AMSA to Comment on EPA’s NODA on the Part 503 Standards for Land-Applied Biosolids
AMSA is currently working with Cambridge Environmental Inc. and the Association’s Biosolids Management Committee to compile comments on a Notice of Data Availability (NODA) on the Part 503 standards for land applied biosolids (67 Fed. Reg. 40554; See Regulatory Alert 02-14) published on June 12 by EPA. The NODA summarizes new data on the levels of dioxin in biosolids and EPA’s revised risk assessment for estimating the risks from dioxin and dioxin-like compounds associated with the land application of biosolids. Using the new dioxin data and revised risk assessment, EPA estimates that the lifetime cancer risk to its modeled (highly-exposed) population is within the Agency’s range of acceptable risks. Furthermore, EPA’s revised risk assessment shows no measurable effect on risk if all biosolids were required to meet the Agency’s 1999 proposed limit of 300 parts per trillion (ppt) toxic equivalents (TEQ).

AMSA is still weighing a number of alternatives to a national numeric limit. Given the scientific data and evidence demonstrating that dioxins in land-applied biosolids pose little threat to human health or ecological receptors, a decision of no action by the Agency may be warranted. However, some members continue to express concern that without a regulatory numeric limit or regulatory control of some sort, they will be unable to assuage the concerns of their communities, to demonstrate that they are “in compliance with the regulations.” AMSA encourages those agencies that have not voiced their opinion to do so as soon as possible, by contacting Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org. Among the alternatives being considered is a voluntary approach, consisting of periodic, self-monitoring combined with a methodology for identifying sources of dioxins, as discussed in the NODA. AMSA is also considering an alternative that would require, by federal regulation, periodic monitoring (once every five years) for dioxins in biosolids, with a requirement to investigate any elevated levels.

For more information contact Chris Hornback, AMSA at 202/833-9106 chornback@amsa-cleanwater.org. The NODA is available on EPA’s web site at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/June/Day-12/w14761.pdf.

 

Pretreatment

AMSA Comments on EPA’s Effluent Guidelines Plan Proposal
AMSA filed comments on July 12, 2002 in response to EPA’s proposed Effluent Guidelines Program Plan for 2002/2003 (ELG Plan) released on June 18 (67 Fed. Reg. 41417). The ELG Plan also contained EPA’s preliminary thinking on a national strategy, to be developed later this year, for the ELG program to guide its implementation in the future. A copy of the notice can be obtained at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/June/Day-18/w15329.htm. AMSA’s comments are available at: http://www.amsa-cleanwater.org/private/legreg/outreach/08-20-02effguidecommts.pdf.

Section 304(m) of the Clean Water Act directs EPA to publish a plan every two years that consists of three elements: 1) a schedule for the annual review and revision of existing effluent guidelines, 2) a list of categories of sources discharging toxic or nonconventional pollutants for which EPA has not published effluent limitations guidelines (ELGs) or new source performance standards (NSPS), and 3) a schedule for the promulgation of ELGs or NSPS for the categories listed under number 2 not later than three years after being identified in the plan. EPA did not identify any new industry categories to target under the ELG program. Environmental activist groups commented that in doing so EPA was violating the Clean Water Act.

AMSA agrees that the time is right to evaluate the current ELG program and determine how it must change to better complement the Agency’s clean water goals. In fact, after a number of meetings with the Agency over the past year on specific ELGs and the program as a whole, AMSA decided to capture the thoughts and ideas of its members in a white paper. Many of the recommendations in AMSA’s white paper (See http://www.amsa-cleanwater.org/private/legreg/outreach/062502attach.pdf) parallel the issues the Agency has already identified as integral elements of an ELG program strategy. Like EPA, AMSA believes that any future priority setting process “must be completely transparent” and include program stakeholders. AMSA will continue its discussions with the Agency over the coming months to ensure the concerns of the POTW community are reflected in the strategy. For further information, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Supports EPA’s “No Regulation” Alternative for Metal Products and Machinery
AMSA filed comments on July 22 on EPA’s Notice of Data Availability (NODA) on the Metal Products and Machinery (MP&M) Effluent Guidelines (67 Fed. Reg. 38752; See Regulatory Alert 02-12) published June 5. AMSA’s comments supported the “no regulation/no further regulation” option for indirect MP&M dischargers. Given the success of the existing categorical pretreatment standards and POTW local limits at preventing interference and maintaining high quality biosolids, AMSA does not believe that additional pretreatment standards are warranted. Furthermore, AMSA stated that EPA’s potential 433 Upgrade Option, specifically the proposal to regulate previously non-categorical General Metals facilities, is not a viable alternative. AMSA asserted that these facilities are not “unregulated,” but in fact are regulated to the extent necessary by POTW local limits. Finally, AMSA noted that the environmental management system (EMS) alternative discussed in the NODA would simply add another unfamiliar regulatory requirement that POTWs would be required to oversee in-lieu-of pretreatment standards. AMSA supports and encourages the development of EMSs by its member agencies, but can see no benefit in requiring POTWs to enforce the use of a tool that is inherently voluntary.

For further information on the MP&M NODA and AMSA’s comments, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org. AMSA’s comments are available on AMSA’s web site at: http://www.amsa-cleanwater.org/private/legreg/outreach/062502comments.pdf.

AMSA Tracks EPA Plans to Delay New Electronic Record-keeping Requirements
After receiving extensive comments stating that the proposal vastly underestimated the complexity of the provisions in terms of cost and implementation, EPA is reevaluating the Cross Media Electronic Reporting & Recordkeeping (CROMERR) rule proposal. The rule is part of Agency efforts to remove regulatory barriers in the wake of the 1998 Government Paperwork Reduction Act. The CROMERR initiative is seeking to establish standards for electronic recordkeeping and report submission that would increase the use of these methods and ensure the integrity of the stored information. The original proposal had two sections, one for recordkeeping and one for reporting. The recordkeeping provisions were by far more contentious than the reporting provisions. Based in part on AMSA’s recommendations, EPA will likely split the rule and address the reporting and recordkeeping components separately.

AMSA believes that the reporting and recordkeeping provisions in their current form could force POTWs to choose between upgrading electronic systems and reverting to paper records. AMSA continues to track the progress of CROMERR. The National Office will provide comments to the Agency when the next proposal is released and will alert the membership when there are more details on next steps. For further information contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

EPA Excludes Wastewater Treatment Units from Part 112 Oil Pollution Requirements
For the past year, AMSA has been tracking EPA’s efforts to clarify the applicability of the Part 112 regulation to POTWs. On July 17, EPA finalized amendments to the Oil Pollution Prevention regulation (40 CFR Part 112) promulgated under the authority of the Clean Water Act. Part 112 includes requirements for Spill Prevention, Control, and Countermeasure (SPCC) Plans, and for Facility Response Plans (FRPs) (67 Fed. Reg. 47042). The final rule adds an exclusion to the general applicability provisions for Part 112 stating that the part does not apply to: “Any facility or part thereof used exclusively for wastewater treatment and not used to satisfy any requirement of this part.” Part 112 establishes procedures and other requirements to prevent the discharge of oil from non-transportation-related onshore and offshore facilities into or upon the navigable waters of the United States. The provisions only apply to facilities exceeding certain oil storage capacity thresholds (42,000 gallons of buried oil storage capacity; aboveground aggregate capacity in excess of 1,320 gallons).

Until this final rule, the status of wastewater treatment units containing small quantities of oil, which were not designed or used to produce, recover, or recycle the oil, was unclear. Some Regional EPA offices had indicated that these wastewater treatment units would not need to be included in the calculation of a facility’s oil storage capacity, but before the recent final rule there was no national policy or regulation. With the final rule, if a wastewater treatment unit is used for the purpose of storing oil, then the exemption does not apply and the capacity of the unit must be counted towards the facility’s threshold. Any oil storage capacity associated with or incidental to these wastewater treatment units continues to be subject to Part 112. For example, bulk storage containers, hydraulic equipment associated with the treatment process, containers used to store oil which feed an emergency generator, and slop tanks or other containers used to store oil resulting from treatment are still subject to Part 112. Flow-through treatment devices such as oil/water separators that have storage capacity within the treatment unit itself are also subject to the requirements. The Federal Register notice can be obtained at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/July/Day-17/.

AMSA to Comment on EPA’s Proposal to Relax Performance Track Requirements
On August 13, EPA Administrator Christine Todd Whitman made good on an earlier promise to National Environmental Performance Track participants to propose a rule, which, among other things, relaxes reporting requirements under the Clean Water Act for high-performing POTWs that participate in the program. The August 13 Federal Register notice (67 Fed. Reg. 52674) proposes four incentives designed to reduce overall burden to POTWs participating in the program. The four provisions provide:

Some of these changes address the same issues AMSA has been advocating under the Pretreatment Streamlining Rule. Unfortunately, the added flexibility will only be available to POTWs that participate in the Performance Track Program. The Performance Track program was created in 2000 to motivate and reward those members of the regulated community that go beyond compliance by developing environmental management systems (EMSs) and looking for ways to continuously improve environmental performance.

AMSA plans to participate in the public hearing on the proposed provisions scheduled for September 27 in Washington D.C., and will submit comments on the proposal. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org. Additional information on the National Environmental Performance Track program can be obtained at: http://www.epa.gov/performancetrack/. The Federal Register notice can be obtained at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/August/Day-13/w20347.htm.

 

Water Quality

National Office Efforts Help Keep Watershed Rule on Track
In a move that AMSA supported and encouraged, EPA informed the Association that it intends to propose its proposed total maximum daily load (TMDL) rule, commonly called the watershed rule, after having contemplated jettisoning the regulation in favor of existing requirements. The Agency’s decision came the same day AMSA sent a strongly worded letter to EPA Administrator Christine Todd Whitman and in the wake of several meetings between AMSA and high level Agency officials, urging EPA to propose the watershed rule. AMSA’s support for the rule is best expressed in the Association’s August 7 letter to Whitman, stating that “[t]he watershed rule EPA plans to propose would create a system to holistically address clean water issues, incorporating both point and nonpoint sources in a meaningful manner. It also would provide a workable process for TMDL implementation and accountability for all parties.”

AMSA’s letter also points to the inconsistency environmental organizations have portrayed on this issue, stating that “[s]tunningly, we also have heard that environmental organizations support EPA’s potential abandonment of the watershed rule in favor of a return to the broken 1992 rule. These same organizations coordinated the filing of over 30 lawsuits against EPA and the states for failure to develop and implement TMDLs under the 1992 rule, leaving no question about their position on the 1992 rule’s effectiveness.” Demonstrating the important role AMSA will have in the watershed rule’s development, Ben Grumbles, EPA’s Deputy Assistant Administrator for Water, stated in the August 8 edition of the Washington Post that the new rule will “refine the existing program by . . . addressing the concerns of stakeholders, such as . . . local sewage treatment and water pollution control agencies.”

AMSA also met on August 9 Office of Management Budget (OMB) officials on the need to move forward with the watershed rule. AMSA will update its members continuously on the progress of the watershed rule. AMSA’s letter to Whitman is available at http://www.amsa-cleanwater.org/private/legreg/outreach/080702whitmanletter.pdf. For more information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Comments on EPA’S Draft Strategy for Water Quality Standards and Criteria
AMSA filed comments on July 16 on EPA’s Draft Strategy for Water Quality Standards and Criteria: Strengthening the Foundation of Programs to Protect and Restore the Nation’s Waters (Draft Strategy), released for public comment on May 7 (See Regulatory Alert 02-11). The Draft Strategy represents the culmination of the Agency’s review of the existing standards and criteria program, its functionality, and its interaction with other clean water programs. The Draft Strategy lays out a series of strategic actions to guide program activities for the next seven years. The Draft Strategy addresses a number of the issues AMSA has raised over the last few years, including the need for guidance on designated uses and use attainability analyses (UAAs), the need for coordinating total maximum daily load (TMDL) development with the review of water quality standards, and the lack of analytical methods for evaluating bacterial indicators in wastewater. However, the proposed schedule for some of the key actions will leave a number of critical issues unresolved for the near future.

AMSA’s comments noted that many of the same issues highlighted in the Association’s comments on an Advance Notice of Proposed Rulemaking (ANPRM) from July of 1998, which detailed possible revisions to the water quality standards regulations, are still relevant today. AMSA also provided comments on various sections of the guidance detailing suggested approaches for EPA to consider as it moves forward with the identified projects. In addition, AMSA highlighted issues for which EPA should establish clear, reasonable deadlines, including a list of unfinished guidance documents that the Association believes should be finalized in the next two years. These guidance documents include: water quality modeling tools and analyses, including wet weather; application of narrative criteria; variances; compliance schedules; stormwater and related wet weather issues; and, strategic approach to address major interstate water quality standards inconsistencies.

For more specific information on AMSA’s comments contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org. The Draft Strategy can be obtained at: http://www.epa.gov/waterscience/standards/. AMSA’s comments may be found at: http://www.amsa-cleanwater.org/private/faxalerts/08-16-02a.pdf.

AMSA Comments on EPA’s Draft Guidance for Ambient Water Quality Criteria for Bacteria
AMSA filed comments on August 2 on EPA’s Implementation Guidance for Ambient Water Quality Criteria for Bacteria (Draft Guidance) published on June 11 (See Regulatory Alert 02-13). EPA began work on the document in 1999 in response to the 1999 Action Plan for Beaches and Recreational Waters and issued an earlier draft in February 2000. AMSA continues to call into question the Agency’s complete reliance on E. coli and enterococci as indicators of bacteria contamination given the lack of a clear scientific foundation for their use. The Association is concerned with a number of other aspects of the Draft Guidance, specifically the need for additional research to validate criteria. AMSA noted that the document provides little guidance for the regulated community considering the unavailability of effective test methods for enumerating these indicators in wastewater. For more information, contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org. AMSA’s comments are available on AMSA’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/080202bacteriaguid.pdf.

AMSA Submits Comments on EPA Draft Water Quality Trading Policy
On July 15, AMSA submitted comments on EPA’s proposed Water Quality Trading Policy (“proposed policy”), published in the Federal Register on May 15 (See 67 Fed. Reg. 34709, or http://www.epa.gov/owow/watershed/trading/proptradepolicy.pdf). The letter is posted on AMSA’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/07-02comments.pdf. AMSA’s letter expressed support for the Agency’s efforts to craft a water quality trading program that addresses past concerns with trading and that appears to leave many of the necessarily site- or state-specific issues to their discretion. The letter also lauded EPA’s emphasis on trading being voluntary, the ability to trade prior to and following a total maximum daily load (TMDL) allocation, and the Agency’s enhanced discussion of nonpoint source controls. However, while AMSA, on balance, is supportive of trading, the Association indicated that significant changes must be made to ensure that the process works effectively and that it is equitable for all parties involved.

AMSA’s major concerns and recommendations are as follows:

For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Reviews EPA’s Recently Published National Beach Guidance
On July 19, EPA published (67 Fed. Reg. 47540) the National Beach Guidance and Required Performance Criteria for Grants. This document sets forth performance criteria for (1) monitoring and assessing coastal recreation waters adjacent to beaches (or similar points of access used by the public) to determine attainment of applicable water quality standards for pathogen indicators and (2) promptly notifying the public of any exceedance or likelihood of exceedance of applicable water quality standards for pathogen indicators for coastal recreation waters. This document is intended for use by potential grant recipients to implement effective monitoring and notification programs that will be eligible for grants under Clean Water Act Section 406 (Coastal recreation water quality monitoring and notification).

AMSA submitted comments on the draft guidance on October 1, 2001. Those comments can be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/10-2-01ntlbeach.pdf. The final Guidance can be found at EPA’s web site at http://www.epa.gov/waterscience/beaches/grants/guidance/all.pdf. AMSA is currently reviewing the Guidance to determine what changes were made from the draft in response to comments. For more information, contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

 

Wet Weather

National Office Urges EPA to Incorporate Achievable Standards into Proposed SSO Rule
Following an early August meeting with Assistant Administrator for Water Tracy Mehan and other Office of Water staff, the National Office on August 20 sent a letter to EPA urging the Agency to propose a SSO rule that includes an achievable control standard for permittees. AMSA suggested that the control standard should be based on the implementation of a site-specific capacity, management, operation and maintenance (CMOM) program, a set of measures that is supported by the wastewater treatment community. The Association’s letter also commended EPA for announcing its intention to move forward with the rule and to propose a single, comprehensive regulatory package, as opposed to a series of separate rulemakings as was recommended by the activist community. AMSA’s letter is posted on the web site at http://www.amsa-cleanwater.org/private/legreg/outreach/08-02Mehanletter.PDF. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA to Report on 2002 Wet Weather Survey Results
Eighty five (85) AMSA member agencies responded to the 2002 Wet Weather Survey. AMSA staff and the project team will be compiling preliminary findings and conclusions for consideration by the SSO Workgroup and Wet Weather Issues Committee in September. A final report will be released to the membership in October 2002. AMSA launched its 2002 Wet Weather Survey on March 20 (see Regulatory Alert RA 02-7). The 2002 Wet Weather Survey, the first national survey of its kind, was conducted in order to develop a more thorough understanding of how members design their collection systems and treatment plants to handle wet weather flows. This information will be critical to AMSA’s ongoing regulatory negotiations with EPA on a reasonable SSO rule and blending policy. The survey will also provide the foundation for proposing site-specific methodologies for POTWs and collection system owners and operators to follow when setting the design capacity for the collection system. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.