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AMSA March 2002 Regulatory Update

Member Pipeline - Regulatory - March 2002 Update

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: April 3, 2002

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AMSA's National Office is pleased to provide you with the March 2002 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to April 1, 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.

 

Biosolids

AMSA Active in Trio of Clean Air Act POTW Sludge Incinerator Suits
The District of Columbia District Court recently approved AMSA's participation as a party intervenor in three separate lawsuits filed by the Sierra Club alleging the U.S. Environmental Protection Agency's (EPA's) failure to promulgate Clean Air Act (CAA) regulations for sewage sludge incinerators (SSIs) and other industrial sources by statutory deadlines. The first suit seeks performance standards and other requirements under CAA §129 for "other solid waste incinerators," including SSIs. AMSA's long-standing position is that SSI regulation under CAA §129 is unsupported by the statute because sewage sludge is not a "solid waste" generated by "commercial or industrial sources" as required by the CAA.

The second suit seeks technology-based CAA standards for urban area sources of hazardous air pollutants (HAPs) under CAA §112(k). Area sources are those emitting less than 10 tons per year (tpy) of any one HAP or less than 25 tpy of any combination of HAPs. POTWs are one of the area source categories EPA plans to regulate under the urban program. See 64 Fed. Reg. 38,721 (July 19, 1999). EPA also may regulate SSIs under the §112(k) program. AMSA's position is that both POTWs and SSIs are insignificant contributors of the HAPs of concern in urban areas, and that data EPA used to list POTWs as an area source category in 1999 do not reflect current emission rates.

The third suit involves EPA's failure to promulgate CAA §112(d) technology-based maximum achievable control technology (MACT) standards for SSIs. AMSA is pursuing a finding that the inclusion of SSIs in this case is now moot since, in February 2002, EPA delisted SSIs from the CAA § 112(d) schedule. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Comments Lead to Shift by NIOSH on Biosolids
Comments by AMSA, the Water Environment Federation (WEF) and others have triggered a policy shift by the National Institute for Occupations Safety & Health (NIOSH) with significant implications for biosolids management. In August 2000, NIOSH issued Hazard ID # 10, Workers Exposed to Class B Biosolids During and After Field Application, which recommended standard personal hygiene practices and the use of personal protective equipment where needed to prevent potential health problems in workers handling Class B biosolids. Unfortunately, many stakeholders mischaracterized the intent of Hazard ID #10 and used the report as evidence that the land application of Class B biosolids should be prohibited. After receiving a number of comments by AMSA and others on the impact of Hazard ID #10, NIOSH decided to draft a new "guidance" entitled Controlling Potential Risks for Workers Exposed to Biosolids. AMSA considers the decision by NIOSH to replace Hazard ID # 10 with guidance to be a significant policy shift, one that should be beneficial to the membership. AMSA applauded NIOSH in a March 22 letter, indicating that "the draft guidance is well balanced and logically organized" and that "it is consistent with good personal hygiene practices and recognized personal protective equipment procedures." A copy of the draft guidance and AMSA's letter can be found at: http://www.amsa-cleanwater.org/private/reg_outreach.cfm. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.

EPA's Office of Inspector General Issues Status Report on Land Application of Biosolids
On March 28, 2002, EPA's Office of Inspector General (OIG) issued its final Status Report: Land Application of Biosolids. Initiated after the National Whistleblower Center sent the OIG a series of allegations concerning EPA's conduct with regard to the regulation of biosolids, the report highlights the Inspector General's findings related to EPA and state personnel and resource commitments, the Agency's tracking of and response to health complaints, the science surrounding pathogens, and public acceptance concerns. The report does not make any recommendations. EPA's Office of Water provided comments on the report in February. Those comments and land application data for seven states are included as appendices to the final report. A copy of the final report is available on AMSA's website at http://www.amsa-cleanwater.org/private/regupdates/march02/ooigstatusreport032802.wpd. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA, EPA, and Environmental Groups Reach Agreement in Land-Applied Biosolids Case
On April 1, AMSA and other parties to a decade old lawsuit over EPA's Clean Water Act (CWA) sewage sludge regulations agreed to a significant extension of EPA's deadline to finalize regulations for dioxins in land-applied biosolids. Gearhart v. Whitman, Civ. No. 89-6266-HO (D. Or.) (Gearhart). EPA originally was required to finalize the regulations by December 15, 2001 under the Gearhart Consent Decree. Last summer, however, EPA notified AMSA, the Natural Resources Defense Council (NRDC), and the citizen parties to the Consent Decree that EPA needed to extend the December deadline because significant new data on dioxins in land-applied biosolids were available. These new data include AMSA's 2000/2001 Survey of Dioxin-like Compounds in Biosolids; a revised EPA risk assessment to support a final rule; and EPA's own 2001 dioxin in biosolids survey. In addition, this spring EPA expects to approve a new and significantly more stringent Agency-wide cancer value for dioxin. The revised cancer value may impact EPA's assessment of human health and environmental risks from land-applied biosolids. After extensive negotiations and two interim extensions of the December deadline, the Joint Stipulation filed with the court this week allows EPA to take public comment on the new data, and gives the Agency until October 17, 2003 to finalize the regulations.

The citizens and NRDC would agree to the deadline extension only if EPA committed to take several additional actions on sewage sludge. These actions, and other conditions of the extension, are contained in a separate Agreement between the parties. This Agreement is not part of the Consent Decree and was not filed with the court. EPA, however, treats the Agreement as seriously as the court-filed documents. Notably, AMSA will recover from the government the in-house legal costs incurred to negotiate the Joint Stipulation and Agreement. For more information about the Joint Stipulation and Agreement, refer to AMSA's Legal Alert 02-6. Related documents are available on AMSA's Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm.

EPA's supporting materials for the new risk assessment for dioxins in land-applied biosolids are posted on the Agency's web site. These documents include the technical background document, risk characterization, and analytical data sheets from EPA's 2000 dioxin in biosolids survey. External peer review comments are also available. AMSA has initiated a Technical Action Fund project to review and comment on these documents to ensure the assessment is reasonable and consistent with EPA policy. The materials can be obtained at: http://www.epa.gov/ost/biosolids/support.html. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Air Quality

AMSA to File Supportive Comments on Proposal to Amend POTW MACT for Industrial POTWs
On March 22, 2002, EPA proposed to amend the final Clean Air Act (CAA) maximum achievable control technology regulations for new and existing industrial publicly owned treatment works (POTW MACT) (67 Fed. Reg. 13496). The amendments are proposed under a settlement agreement with the Pharmaceutical Research and Manufacturers of America (PhRMA), which challenged the POTW MACT. PhRMA specifically litigated the POTW MACT's provision that automatically would classify an industrial POTW as a major source of hazardous air pollutants (HAPs) if the POTW received wastewater for treatment from any major source. Being classified as a major source of HAPs would subject the industrial POTW to extensive CAA permitting requirements. PhRMA was concerned that industrial POTWs might decline to accept their wastewater for treatment under these regulatory conditions. The March 22 proposal: 1) rescinds the automatic major source classification provision for industrial POTWs; 2) applies major source industrial POTW MACT requirements to all area source industrial POTWs; and 3) exempts area source industrial POTWs from the CAA's Title V permitting requirements. Comments on the proposed action are due to EPA on or before April 22, 2002. AMSA plans to file comments in support of EPA's proposed action and to solicit input from members that may be impacted by the rule. For more information, please contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

 

Pretreatment

AMSA Prepares Comments on Proposed Exemption for Meat and Poultry Products
On February 25, EPA published the proposed Meat and Poultry Products Effluent Limitations Guidelines (ELG) (67 Fed. Reg. 8582) (See Regulatory Alert 02-6). EPA proposes to take no action for indirect dischargers. However, the Agency solicits comment on several regulatory options and seeks input on a handful of reported interference episodes at POTWs. During discussions with EPA over the last six months, AMSA has maintained that POTWs are capable of handling the pollutants discharged from meat and poultry processing facilities. Though EPA cites approximately 20 incidents of interference caused by meat or poultry facilities, the Agency admits that they do not have all the relevant details and that some of the cases may have been one-time events.

AMSA has already begun work to prepare comments on the proposal. Given that EPA has only provided a 60-day comment period, AMSA has requested an extension of the comment period to ensure it has adequate time to collect comments and other relevant information from the membership. AMSA also will participate in the public hearing scheduled for April 9, 2002, in Washington, DC. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org. A copy of the proposed rule can be obtained at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/February/Day-25/w2838.pdf.

 

Water Quality

AMSA Releases TMDL Listing Guidelines
On March 11, 2002, AMSA, the American Farm Bureau Federation, and the Federal Water Quality Coalition released a joint report on how to improve state Clean Water Act (CWA) total maximum daily load (TMDL) listing processes (CWA §303(d)) and state comprehensive water quality reports (CWA §305(b)). See AMSA's Regulatory Alert RA 02-5 for additional details. AMSA and the co-sponsoring organizations released the report, entitled Preparation of Integrated Water Quality Monitoring and Assessment Reports: Recommendations for State Methodologies and Reporting ("Integrated Report Recommendations"), before attendees at the mid-winter meeting of the Association of State & Interstate Water Pollution Control Authorities (ASIWPCA), in Alexandria, VA. AMSA hopes that this document, created in part with AMSA's Technical Action Fund, will be a useful tool for member agencies to use with state regulators who are now preparing integrated §303(d) and §305(b) lists for the October 1, 2002 deadline. Integrated Report Recommendations includes a comprehensive summary of our recommendations, and several appendices containing examples of well-written, existing state listing regulations and policies.

To encourage widespread distribution of Integrated Report Recommendations and its accompanying appendices, the documents are available on the publicly accessible portion of AMSA's website at http://www.amsa-cleanwater.org/advocacy/wqmar/. We encourage all AMSA members to share and discuss these documents with the regulators responsible for waterbody listings and preparation of integrated reports in your state. For more information on this project, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Prepares to Weigh In on EPA's Proposed Water Quality Trading Policy
EPA is preparing to release in April a proposed Water Quality Trading Policy ("Trading Policy") for public comment. The proposed Trading Policy will set forth minimum components and provisions necessary for trading to be successful and consistent with Clean Water Act (CWA) permit requirements (Sections 402 and 404), antibacksliding provisions, the development of water quality standards and antidegradation policies, federal NPDES regulations, and water quality management plans. The policy is also expected to facilitate implementation of TMDLs, establish incentives for voluntary pollutant reductions, and promote watershed-based initiatives. A copy of EPA's February 25 draft Trading Policy can be accessed on AMSA's web site at http://www.amsa-cleanwater.org/private/regupdates/march02/drafttradingpolicy022502.pdf. AMSA's Water Quality and Legal Affairs Committees will be conducting a review of this document upon its release as a follow-up to the Association's preliminary comments to EPA (see January 22 letter).

Although neither Committee has formally reviewed the February 25 draft Trading Policy, AMSA staff note the following key issues at this time:

AMSA staff will continue to monitor the progress of the proposed Trading Policy, and provide the membership with an opportunity to provide focused comments upon the document's release. We welcome any preliminary feedback from the membership on the above issues or any other part of the draft Trading Policy. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Seeks Involvement in Key Antidegradation Case
On March 21, following Board of Directors approval, AMSA motioned to intervene in a precedent-setting CWA case jointly with the West Virginia Municipal Water Quality Association and the West Virginia Municipal League. Ohio Valley Environmental Coalition, et al., v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23 2002). In the case, environmental groups are challenging the EPA's approval of West Virginia's antidegradation regulations under the CWA, designed to prevent overall degradation in the ambient water quality of receiving waters. Backed by national environmental groups, the Ohio Valley plaintiffs are seeking more stringent state antidegradation regulations that would further an overall "no growth" agenda.

If the Ohio Valley plaintiffs are successful, the case could have potential adverse impacts for POTWs nationwide for several reasons. First, the CWA's antidegradation provisions, and state regulations implementing them, have not been previously tested in court. This makes Ohio Valley a case of first impression, and the West Virginia court's decision significant. Second, West Virginia's regulatory provisions are drawn from those already enacted in other states. West Virginia's regulations include important POTW exemptions including: 1) de minimus activities resulting in less than a 10 percent reduction in the water segment's assimilative capacity; 2) proposed new or expanded discharges from POTWs to alleviate public health concerns associated with failing septic systems or untreated or inadequately treated sewage (including combined sewer overflow elimination or reduction projects); and 3) POTW expansions or improvements. Accordingly, a successful challenge to West Virginia's regulations could bring into question the legality of antidegradation policies and CWA permitting practices in other states. AMSA documents relating to the case can be found on the AMSA Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm#12. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Participates in TMDL Rule Briefing
On March 28, EPA provided AMSA and other parties to the American Farm Bureau Federation et. al. v. Whitman lawsuit over the Agency's controversial July 2000 TMDL regulations with a status report on the activities to date. During the briefing, EPA indicated that its present plans will include adding a watershed focus to the rule and using the CWA's § 303(e) Continuing Planning Process to implement TMDLs. TMDLs will include point source wasteload allocations, as well as nonpoint source load allocations that must be both "technically achievable" and reasonably assured of implementation. A detailed presentation of EPA's present directions for the new TMDL proposal (delivered at the ASIWPCA Mid-Winter Meeting) is available on AMSA's website at http://www.amsa-cleanwater.org/private/regupdates/march02/epatmdlpres031402.ppt. EPA emphasizes that it continues to change the content of the material contained in the presentation and has not received management approval for key elements of the package. Despite the fact that several challenging issues remain unresolved, such as interim permitting and nonpoint source accountability, a new TMDL proposal is still expected later this spring. For further information, contact Alexandra Dunn at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA to Comment on EPA Data Quality Objectives
On January 3, the Office of Management and Budget (OMB) published its final guidelines on how agencies should ensure and maximize the quality, objectivity, utility, and integrity of information they disseminate (the guidelines were initially finalized September 28, 2001, but subsequently revised). Section 515 of the Treasury and General Government Appropriations Act for FY2001 (Public Law 106-554) directed OMB to issue the government-wide guidelines. The OMB guidelines outline a basic standard of quality for the use of science in agency decisionmaking, stating that agencies are to use the "best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices" and "data collected by accepted methods or best available methods." The guidelines also contain a "reproducibility" standard to ensure information is capable of being reproduced given an acceptable degree of imprecision, with less imprecision being tolerated as the impact of the information increases. OMB's guidelines direct agencies to:

EPA has formed an internal workgroup comprised of EPA Headquarters and Regional staff to prepare the Agency's guidelines for public comment. The Agency plans to post the draft guidelines on May 1, 2002 and accept comments for 30 days. EPA's final guidance must be completed by October 1, 2002. AMSA plans to provide comments to EPA on the draft implementation guidelines and will continue to evaluate how the guidelines may aid AMSA's efforts. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA to Assess New Ecoregional Nutrient Criteria
On February 28, EPA released nine new ecoregional nutrient criteria documents for lakes and rivers (67 Fed. Reg. 9269). This brings the total number of criteria documents released to 26. EPA will accept significant scientific information on the criteria if it is submitted to the Agency within 90 days of publication of the notice. Over the past two years, AMSA has commented on the Agency's national nutrient criteria strategy, the guidance documents for lakes and reservoirs, rivers and streams, and estuarine and coastal waters, as well as the first 17 ecoregional criteria documents released last spring. AMSA will review the recently released criteria documents and ascertain whether additional comment is warranted. The new criteria documents can be obtained at: http://www.epa.gov/waterscience/criteria/nutrient/ecoregions/index.html. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.

Association Tracks BEACH Act Efforts and New Health Effects Study of Microbial Pathogens
The EPA Office of Research and Development (ORD) will soon initiate a data collection effort to support a series of epidemiological studies evaluating exposure to and effects of microbial pathogens in recreational waters. EPA's strategic plan for implementing the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act) identifies research on the effects of microbial pathogens in recreational waters as a high-priority research area with particular emphasis on developing new water quality indicator guidelines for recreational waters. The study is slated to begin on a pilot level this summer. Multiple sites with refined study design will be conducted in 2003, 2004, and 2005. AMSA will continue to track the progress of this study and other EPA activities associated with the BEACH Act. For more information on the proposal, please contact Chris Hornback, AMSA 202/833-9106 or chornback@amsa-cleanwater.org.

 

Wet Weather

AMSA Releases 2002 Wet Weather Survey
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, is being 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 sanitary sewer overflow (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. Data collected through this survey will be incorporated into a final report, to be released in mid July, and will be used to propose a methodology for POTWs to use in the future when sizing new sewers to address SSOs. The final report will be presented and distributed at AMSA's Summer Conference in Portland, OR from July 16-19. The deadline to complete the survey is April 22. To encourage broad membership participation, the survey form available on-line by visiting the AMSA web site at http://www.amsa-cleanwater.org and clicking on the 2002 Wet Weather Survey icon. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

 

EPA Meetings

Persistent, Bioaccumulative Toxic Monitoring Strategy Workshop
EPA, in collaboration with the U.S. Geological Survey (USGS), the National Oceanic and Atmospheric Administration (NOAA), and the Centers for Disease Control and Prevention, will hold a Persistent Bioaccumulative Toxic (PBT) Monitoring Strategy Workshop on April 22-24, 2002, in Raleigh, North Carolina. The purpose of the workshop is to aid the development of a national PBT Routine Monitoring Strategy, to be drafted in 2002, that will guide EPA in discerning long-term trends in various media and assessing the effectiveness of PBT risk management actions. The initial priority PBT pollutants are mercury, PCBs, and dioxin, though the Strategy will also consider the range of pollutants that should be addressed. To register for the workshop, go to: http://www.battelle.org/conferences/pbt/.

25th Annual Conference on Analysis of Pollutants in the Environment
The Office of Science and Technology will host the "25th Annual Conference on Analysis of Pollutants in the Environment" on May 7-9, 2002 at the Sheraton Norfolk Waterside Hotel, in Norfolk, Virginia. The conference is designed to bring together representatives of regulated industries, commercial environmental laboratories, state and federal regulators, municipal water and wastewater laboratories, and environmental consultants and contractors to discuss all aspects of environmental measurement, focusing on environmental water regulations, compliance monitoring, and related issues. Additional information on the conference and a draft program agenda can be obtained at:
http://www.epa.gov/fedrgstr/EPA-MEETINGS/2002/March/Day-26/m7225.htm.

National Symposium on Designated Uses
EPA will host a national symposium entitled "Designating Attainable Uses for the Nation's Waters" on June 3-4, 2002, in Washington, D.C. EPA is interested in developing additional guidance on establishing designated uses for waterbodies and the process to follow when making those uses more or less protective (use attainability analyses). EPA hopes the symposium will provide an opportunity for stakeholders to prevent their views on the subject. The meeting is open to anyone who wishes to attend. EPA is soliciting abstracts from those interested in making a presentation (approximately 15 minutes) at the symposium. EPA will select speakers from among those submitting abstracts to ensure they receive diverse views on the subject. Abstracts are due to EPA by April 19, 2002. Additional information on the symposium can be obtained at: http://www.epa.gov/waterscience/standards/symposium/.

 

EPA Posts

Jim Hanlon to Take Over Office of Wastewater Management
On March 28, EPA announced its preliminary new assignments under the Senior Executive Service (SES) Mobility Program. The SES Mobility Program is an EPA initiative which enables senior Agency officials to volunteer for new assignments within another office. Among the new assignments at EPA's Office of Wastewater Management (OWM) is the appointment of Jim Hanlon as OWM's Director. Hanlon has been serving as Acting Deputy Assistant Administrator for Water, until the recent appointment of Benjamin Grumbles to that position. Hanlon has been with the Agency for almost 30 years, beginning in 1972 as a staff engineer in the municipal construction program in EPA's Region V office. He has also previously worked as the Director of the Office of Water's Municipal Construction Division, where he was responsible for the management of EPA's national construction grants and state revolving fund (SRF) programs, and as the Office of Science & Technology's (OST's) Deputy Director. In addition to Hanlon's new assignment, we also know that Linda Boornazian will step in as Director of the Permits Division.

Of particular note among AMSA's contacts taking advantage of the SES program is Mike Cook, OWM's long-time Director. Cook has accepted an opportunity under the Mobility Program to take over as Director of the Office of Emergency & Remedial Response (OSWER). Cook has been with EPA for the last 29 years, and has served as OWM's Director for the past 11 years beginning in 1990. The start date for these new assignments have not been announced.