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Water Quality Issues

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. EPA is currently collating over 165 sets of comments on the ANPRM, and expects to be in a better position to assess possible rule changes by early summer. AMSA plans to meet with EPA in May to discuss its priority issues. 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 will propose a rulemaking to 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. EPA has entered into settlement negotiations and believes that it will be required to propose a rule by July 1, 1999 and promulgate a final rule by April 1, 2000. As of the date of the final rule, all existing state water quality standards will be effective. After the final rule is promulgated, any modified standard will require EPA approval prior to becoming effective. CONTACT: Fred Leutner, EPA 202/260-1542 or Mark Hoeke, AMSA 202/833-9106.

EPA Planning to Release Draft Anti-Degradation Guidance in April 1999

Background: The President's February 1998 Clean Water Action Plan (CWAP) calls for “EPA to develop guidance that more specifically defines expectations and procedures for States to follow in fully implementing anti-degradation policies related to polluted runoff...” In response to the CWAP requirements, EPA has worked with Regions and States to develop a draft guidance document planned for release in April 1999 for public comment.

Status: The draft guidance discusses four areas including: 1) what antidegradation policy is and how the policy is important to protecting water quality; 2) basic antidegradation policy requirements, illustrating required components of an antidegradation review; 3) advocacy of more consistent consideration of antidegradation concerns in NPDES permits; and, 4) identification of possible mechanisms for applying antidegradation to polluted runoff, including point and nonpoint sources. The draft guidance is scheduled for release in late-April. A sixty-day public comment period is expected, with a final guidance planned for September 1999. AMSA will distribute the draft guidance when available. CONTACT: Fred Leutner, EPA 202/260-1542 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.

Status: A proposal is planned for August 1999. CONTACT: Virginia Fox-Norse, EPA 202/260-8448.

Guidance on Whole Effluent Toxicity (WET) Reasonable Potential

Background: To address stakeholder concerns regarding regulatory decisions on whether or not to include whole effluent toxicity (WET) limits into permits (i.e., “reasonable potential determinations”), EPA is currently developing a draft reasonable potential policy with a team of regional and state permit writers. As required by 40 CFR Part 122.44(d), permitting authorities must make a finding on whether there is “reasonable potential” to cause or contribute to an exceedance of an in-stream WET water quality criteria prior to issuance of permit. AMSA has had concerns regarding the implementation of this requirement, as permitting authorities have historically issued WET limits with little data, and without considering the test variability in the decision. EPA's draft policy is intended to set up a process whereby additional monitoring data is collected for a reasonable potential determination, without imposing a WET limit on the permittee until an evaluation of the additional data is complete.

Status: EPA is currently planning to release a draft guidance document in late spring of 1999. AMSA's Water Quality Committee will review the guidance when available. CONTACT: Mark Hoeke, AMSA 202/833-9106.

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 50 AMSA member agencies offered to participate.

Status: EPA had planned to release a bid information package to study participants in early March 1999. However, due to budget constraints, the excellent response by volunteer sponsors, and some negative peer review comments, EPA is attempting to revise its study approach. Decisions regarding the inclusiveness of all volunteer laboratories, and the adequacy of the study design are expected to be resolved by the end of April 1999. Subsequently, bid packages will be sent and prequalification of POTW-sponsored laboratories will require submittal of laboratory capabilities, standard operating procedures (SOPs), reference toxicant test data, control charts, and quality assurance data. CONTACT: Mike Garel, DynCorp 703/461-8056, Bill Telliard, EPA 202/260-7134 or Mark Hoeke, AMSA 202/833-9106.

EPA Issues Technical Corrections to WET Guidance

Background: In 1995, EPA amended the “Guidelines Establishing Test Procedures for the Analysis of Pollutants,” 40 CFR Part 136 to add whole effluent toxicity (WET) test methods to the list of Agency approved methods for data gathering and compliance monitoring under the Clean Water Act. The WET final rule also incorporated three technical documents by reference. On February 2, 1999, EPA provided notice that technical corrections to the final WET rule and guidance documents would be made to address typographical errors and minor omissions, as well as provide technical clarifications and changes for consistency among the three WET manuals.

Status: On March 4, 1999 technical corrections to EPA's WET rule became effective. For a copy of these corrections see http://www.toxicity.com/guide.cfm, or CONTACT: Marion Thompson, EPA 202/260-7117, or Mark Hoeke, AMSA.

Endangered Species Act - Memorandum of Agreement Among EPA and Services

Background: On January 15, 1999, the Environmental Protection Agency (EPA), Fish and Wildlife Service and National Marine Fisheries Service (the Services) published for public comment a draft Memorandum of Agreement (MOA) describing procedures for enhancing coordination regarding the protection of endangered and threatened species under section 7 of the Endangered Species Act (ESA) and the Clean Water Act's Water Quality Standards and National Pollutant Discharge Elimination System (NPDES) programs. Section 7 of the ESA requires Federal agencies to consult with FWS or NMFS when taking an action which may adversely impact endangered or threatened species. The MOA addresses five key areas, including: 1) procedures for interagency coordination and elevation to resolve disputes between EPA and the Services; 2) planned national level activities to ensure protection of species, including revisions to the water quality standards regulation and a national consultation on EPA's existing 45 water quality criteria for the protection of aquatic life; 3) development of a joint national research and data gathering plan and priorities; 4) guidance regarding review and approval of state and tribal water quality standards; 5) a framework for EPA and the Services to coordinate with regard to issuance of State or EPA-issued NPDES permits and plans to conduct a national consultation on the NPDES permitting program.

Status: AMSA distributed the full draft MOA and accompanying summary via Regulatory Alert RA 99-1. EPA has extended the deadline for comments to April 15, 1999. In general, AMSA members support the Memorandum of Agreement (MOA) goals of improved interagency cooperation and enhanced recovery of endangered species and critical habitat. While supportive of the goals, AMSA members are concerned that the MOA does not acknowledge the role of the regulated community in the process, and that resulting agreements among EPA and the Services may lead to overly protective criteria and increasing administrative burden for states and the regulated community. AMSA is concerned that permitting will become more a federal process, with little ability for meaningful input by permittees, and less of a state/local process once the MOA is implemented. For a full copy of AMSA's comments, visit AMSA's Web site. CONTACT: Mark Hoeke, AMSA 202/833-9106.

Nutrient Criteria Development

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 plans to meet the Administration's directive by following the direction laid out in the draft nutrient strategy. EPA is currently collecting data from national databases (e.g., STORET, National Ambient Water Quality Assessment data) to determine reference nutrient conditions in various ecoregions. Regional nutrient teams have been formed and are discussing the process for developing regional nutrient criteria based upon EPA's data collection effort. EPA is also planning a national stakeholders meeting for Spring 1999, and expects to release two of its planned guidance documents (lakes/reservoirs, and streams/rivers) in the first half of 1999. AMSA is considering the formation of a Nutrients Workgroup to respond to EPA's activities. AMSA members will receive an invitation to participate via an upcoming Regulatory Alert. 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: During a January 19, 1999 meeting with AMSA representatives, EPA presented its plans to conduct a validation study of the more affordable mercury detection method 245.7 in response to AMSA's petition last year. EPA expects to publish the proposed method by the end of the summer, leaving open the possibility of interim approval. In response to comments received, EPA performed an additional validation study for mercury method 1631 using industrial and POTW effluents. EPA interpreted the results of this additional validation study as confirming the ability of method 1631 to accurately quantify mercury in a variety of effluents. In an April 5, 1999 letter to the Agency, AMSA noted its continued concern regarding the costs of clean sampling, and the need for interlab detection and quantitation limits for the method. 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. 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.

Status: On January 19, 1999, the AMSA Mercury Workgroup met with EPA water program officials. Armed with preliminary data indicating that mercury could pose a greater challenge to POTWs than EPA anticipates, AMSA urged EPA to support a national strategy so that every POTW would not be required to develop individual compliance solutions. AMSA and EPA discussed how to deal with situations where source control efforts fail to result in adequate mercury reductions that will meet 1 to 3 ppt permit limitations, such as those currently being developed for Great Lakes dischargers. AMSA questioned whether POTWs would need to install end-of-pipe controls should source control efforts fail. EPA indicated that end-of-pipe controls is not their intent. AMSA emphasized the need to address this issue soon and expressed support for the Ohio mercury variance approach. EPA supports the variance approach, however, highlighted that the Ohio mercury variance includes a regulatory requirement for pollution minimization programs, and questioned whether all States and POTWs would support such a requirement, in addition to an upper limit on low level mercury discharges (e.g., 12 ppt). EPA will further consider the national variance strategy concept and requested AMSA's assistance in defining the minimum requirements of a pollutant minimization plan that could serve as a template for POTWs seeking a variance similar to Ohio's. To further advocate the development a national strategy, AMSA is conducting a mercury source control survey and hopes to assess source control effectiveness via an EPA grant sometime in the fall of 1999. Also, AMSA's Board of Directors plans to discuss the issue of a mercury compliance strategy during a May 26, 1999 meeting with the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) Board of Directors.

During the January 19, 1999 meeting, AMSA also presented its case for modifying the Great Lakes Water Quality Initiative (GLWQI) mercury wildlife criteria methodology, based on updated EPA data presented in the 1998 Mercury Study Report to Congress. Specifically, AMSA requested that the inter-species uncertainty factor be reduced from 3 to 1, based on the data in the Report to Congress. Because of the unfavorable response to AMSA's request during that meeting, AMSA is considering whether to formally petition the Agency to review the criteria. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Margie Nellor, Los Angeles County Sanitation District. 562/699-7411.

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