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To:
Members & Affiliates
From:
National Office
Date:
May 2000
The National Office is pleased to provide you with the May 2000 Regulatory Update. This Update provides an overview of relevant regulatory issues current to May 5, 2000. A narrative summary of activities or actions that have occurred during the past month is provided in this cover, while attached is a Regulatory Digest summary of all regulatory activities that are currently being tracked by AMSA.
EPA/OECA Compliance and Enforcement Strategy for CSOs and SSOs
EPA is stepping up its enforcement efforts on combined sewer overflows (CSOs) and SSOs through the issuance on April 27 of OECA's Compliance and Enforcement Strategy for CSOs and SSOs. The Strategy calls for EPA Regions to develop within 60 days a Compliance and Enforcement Response Plan which ensures that “CSO and SSO violations are properly addressed.”The CSO portion of the strategy requires each Region to establish a timetable for ensuring that all CSO communities are under an enforceable permit or administrative order requiring compliance with the nine minimum controls and completion of a long-term control plan. Enforcement actions will be taken according to several pre-set priorities, including: (1) eliminating dry weather overflows; (2) nine minimum controls implementation and development of long-term control plan; (3) correcting noncompliance with permits or past enforcement actions. Further emphasis should be based on the impact of CSO discharges on receiving waters including the requirement to prioritize areas with beach and shellfish bed closures, source water protection areas, impaired watersheds, and other sensitive areas.
The SSO strategy calls for Regions to “inventory” all SSO violations and target 20 percent of “priority” systems on a yearly basis. The strategy calls for the completion of the initial inventory by July 28, 2000. and suggests the use of any available tools to tally the violations. The strategy indicates that the Regions should use the full range of enforcement options to “ensure that the appropriate remedy is undertaken by the permittee or municipality to correct all SSO problems.” Priorities will be placed on SSOs in “priority watersheds” or in areas where the receiving waters are “impaired”, and/or in “environmental justice areas”, as well as other sensitive areas. The strategy emphasizes the use of Region IV inspection guidance as an inventory and enforcement response tool.
The strategy acknowledges the ongoing development of SSO regulations and suggests that each Region revise its SSO Response Plan accordingly when the regulations are available. However, AMSA remains concerned that the release of a national strategy at this time will be inconsistent with the draft and final regulations, especially in relation to compliance standards, timetables, and other regulatory milestones that will be contained in the rule. In March, AMSA wrote EPA Administrator Carol Browner to express concern with the premature timing of the strategy and its likely conflicts with pending new SSO regulations. AMSA will be discussing the strategy with OECA officials at the upcoming National Environmental Policy Forum & 30th Anniversary Annual Meeting in Washington, DC on May 20-24. The strategy will be the focus of discussion at the May 21 meeting of the Wet Weather Issues Committee and the May 23 meeting of the Legal Affairs Committee.
AMSA Expresses Concerns on EPA/USDA Joint Statement on the TMDL Rule
On May 1, 2000, EPA and the U.S. Department of Agriculture (USDA) published a “Joint Statement of the USDA and the EPA Addressing Agricultural and Silvicultural Issues Within EPA Revisions to TMDL and NPDES Rules.” The Joint Statement was published due to concerns expressed by USDA on EPA's proposed TMDL rules. EPA and USDA formed an interagency workgroup in late-1999 to review the areas of disagreement between the two agencies. Working through the winter, this group “reached agreement on the issues of interest to USDA and EPA has agreed to reflect these agreements in its final TMDL rule.” Since the two agencies reached agreement on USDA's concerns, EPA is making the final revisions to the proposed rules and will send the revised regulations to the Office of Management and Budget (OMB) for final review and approval in early May.Among other things, the attached Joint Statement states that “EPA and USDA agree that voluntary and incentive-based approaches are the best way to address nonpoint source pollution.” The agreement goes on to affirm that States “...are not required to allocate pollution reductions to specific categories (e.g. agriculture) in proportion to pollution contributions.” In another unsettling decision, the USDA and EPA have concluded that forestry operations do not need NPDES permits for at least five years — and maybe never — if States develop adequate forestry BMP programs.
AMSA, following a meeting with policymakers at EPA, has responded to EPA's compromises to agricultural and silvicultural nonpoint sources in a letter to EPA Administrator Browner. AMSA's letter asks Browner to verify that the Joint Statement does not, in fact, erode the agency's long established position concerning the need and appropriateness of State regulatory controls for nonpoint sources in water quality impaired watersheds. AMSA's response details the difficulties that POTWs will face if the language in the Joint Statement is codified in the rule, in subsequent guidance, or in future policy documents.
The USDA-EPA document concludes by stating that “the final TMDL regulations will provide an improved framework for restoring our polluted waters.” AMSA's letter questions how EPA will be able to accomplish this task if the agency fails to be clear and consistent in addressing nonpoint sources in the TMDL process. The full text of the EPA-USDA agreement is available on the web site of EPA's Office of Water at www.epa.gov/owow/tmdl/tmdlwhit.cfml. AMSA's letter to Browner is available on AMSA's web site.
EPA Finalizes Water Quality Standards Review Rule
On April 27, EPA finalized a rule specifying that new and revised standards adopted by States become “applicable standards for Clean Water Act purposes” only when approved by EPA. To facilitate transition to this approach, standards in effect under State law and submitted to EPA before the effective date of the new rule may still be used for Clean Water Act purposes, whether or not approved by EPA, until replaced by Federal water quality standards or approved State standards. The final rule originates from a July 1997, U.S. District Court for the Western District of Washington ruling, which stated 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). As a result of the court decision, EPA on July 9, 1999 proposed a rulemaking to revise the water quality standards review process.The final rule differs from the proposed rule in two ways. First, the July 1999 proposal allowed new and revised standards which are more stringent than the standards previously in effect to be adopted and enforced prior to EPA approval. This provision has been deleted in the final rule, and EPA is requiring that all new or revised standards be approved by EPA, regardless of stringency, before they are required to be used under the CWA. Second, the July 1999 proposal allowed State and Tribal standards in effect before the effective date of this new final rule would remain in effect until superseded by a standard approved or promulgated by EPA. The final rule limits this transition provision by requiring that such standards must have been, or be submitted to EPA prior to May 30, 2000.
On August 23, 1999 AMSA submitted comments on EPA's July 1999 proposal. AMSA's main concern with the proposal was that publically-owned treatment works (POTWs) may be forced to comply with outdated state water quality standards while EPA is in the midst of a prolonged review process of the revised standards. EPA rejected AMSA's arguments that conditional approval of revised standards be allowed after 90 days if the Agency fails to approve or disapprove the revisions, but acknowledged its problems with the timeliness of Agency's past approval/disapproval actions. A copy of the final rule has been distributed to the membership via Regulatory Alert RA 00-09.
EPA Region 9 Issues Draft Guidance for Permitting Discharges Into Impaired Waters
On April 20, 2000, EPA Region 9 released a draft “Guidance for Permitting Discharges Into Impaired Waterbodies in Absence of a TMDL.” The document provides guidance to permit writers for developing both interim and final water quality-based effluent limits prior to the development of a TMDL. The guide distinguishes between limits that must be set to protect toxic effects from elevated water column pollutant concentrations, and those that are to be set to protect bioaccumulative effects in fish tissue or sediment concerns.For non-bioaccumulative pollutants and open systems, the guidance requires final compliance with either the numeric water quality objective at the end-of-pipe (no mixing zone allowed), or the WLA determined from an approved TMDL. Recognizing that it will take time and resources to develop a TMDL or achieve compliance with other numeric water quality objectives, interim concentration limits will be based on what concentrations can be achieved through aggressive source control, pretreatment, pollution prevention, etc., while mass limits will be capped at the current loading levels. Schedules to meet compliance with final limits can be longer than 5 years, but cannot exceed the time allowed in the applicable Basin Plan. Interim permit requirements also include additional ambient monitoring, development and implementation of a pollutant minimization program, identification and analysis of additional treatment options, identification of other sources of pollutants entering the watershed (which are available for offsets), and estimated costs and level of reductions of these potential offsets.
For bioaccumulative, or biostimulatory, or closed system, or sediment concerns, EPA suggests that numeric water quality standards developed to protect these impacts are inadequate. Region 9's approach is to require final compliance with a “no net loading” provision,” or the WLA determined from an approved TMDL. The permittee may achieve these limits through the following efforts: “1) reducing the effluent concentration below detectable levels through source control and treatment; 2) reducing loads through recycling/reclamation; 3) reducing loads elsewhere in the watershed through an approved offset program (...reductions must be an amount at least equivalent to the amount being discharged); 4) end-of-pipe compliance with a site-specific objective that is protective of the use being impaired.” Again, interim concentration limits would be based on aggressive source control (performance-based BAT) and mass limits will be capped at current loading levels.
The guidance also discusses the implementation of a system to promote pollution offsets (trading) among permittees and other entities that are “either not regulated under any environmental statute, cannot be readily controlled due to significant resource constraints or where a responsible party cannot be located.”
EPA to Develop Integrated Strategy for Controlling Waterborne Pathogens
EPA has recently convened a steering committee of water directors from EPA Headquarters and Regions to examine the coverage of current water programs related to waterborne microbial disease and help develop an integrated strategy that will assure that EPA programs address any unmet needs for current and future public health protection. Geoff Grubbs, Director of EPA's Office of Science and Technology has been tasked with leading the EPA steering group which will initially focus on items such as water quality criteria, microbial indicator and monitoring methods, and septic tanks and other unregulated discharges not covered by current Federal programs. EPA's objective is to complete a draft strategy by the end of 2000.AMSA Submits Concerns on Draft Mercury TMDL Plan for Savannah River
On April 10, AMSA submitted concerns to EPA Region 4's February 8, 2000, proposed TMDL for mercury in Middle/Lower Savannah River. In the proposed TMDL, EPA concludes that atmospheric deposition sources are the most important contributors to impairment, but that complexity precludes addressing these sources through the TMDL. Instead, effluent limitations of 1 part per trillion (ppt) for mercury are proposed for point source discharges as the first phase of a two part TMDL.Several issues of concern are raised by the proposed TMDL. First, EPA rejects using the States' water quality standard of 12 ppt as the TMDL target. Instead, EPA derives its own target of 1 ppt, using data from the Mercury Report to Congress and the proposed human health methodology. Second, EPA states that in this TMDL, which it calls a “phased TMDL,” the Agency will not consider loadings or reductions from any sources other than point sources, including air deposition. EPA bases this on the complexity of mercury cycling, inadequate data, and difficulties in quantifying these loadings.
Third, EPA notes that there are 115 point sources in the watershed, but has decided that it will apply limits only to those 2 sources that happen to have mercury limits in their current permits. Fourth, EPA requires those two sources to meet end-of-pipe limits of 1 ppt, but makes no demonstration that these limits will bring about attainment of standards, or that they will make any significant difference in the water quality.
Fifth, while EPA notes that a “Phase II” TMDL will consider the factors that it has ignored in Phase I, it states that the limits for the 2 sources in Phase I will not change as a result of Phase II. Sixth, EPA uses a critical stream flow, for allocation purposes — 1Q20, or the minimum daily flow over the last 20 years, even though its own methodologies clearly call for using a mean flow when dealing with a chronic water quality issue, which mercury clearly is.
A complete copy of the AMSA comments can be found at http://www.amsa-cleanwater.org.
A copy of the proposed TMDL is located at: http://www.epa.gov/region4/water/tmdl/georgia/index.cfm.
NBP Issues Two Requests For Proposals
On May 3, the National Biosolids Partnership (NBP) issued two RFPs for consultant assistance to support the development of the NBP Environmental Management System (EMS). The first project is to conduct a gap analysis for 11 EMS demonstration pilot agencies. The second involves assisting EMS Demonstration pilot agencies in implementing the EMS. A pre-proposal conference is scheduled for May 24, and the deadline for proposals is June 5. For more information contact Nick Bardis at NBP at 703/684-7731 or nbardis@wef.org.EPA Region 3 Issues Mass Limit for Oil and Grease in Final DC Stormwater Permit
On April 19, EPA Region 3 announced the issuance of a final municipal stormwater permit for the District of Columbia. The final permit includes requirements to monitor and control almost 500 stormwater outfalls that discharge into the Anacostia River, as well as Rock Creek and the Potomac River. The permit also includes what is believed to be the first numeric permit limit for a municipal stormwater discharge in the country. The numeric mass limit for oil and grease is based on a TMDL developed for Hickey Run, a very small tributary to the Anacostia River. According to the permit,
“.... the drainage area (of Hickey Run) is a mere 1.7 square miles. The upper half is entirely sewered with no open channel. Essentially, the headwaters of Hickey Run are underground storm sewer pipes with outfalls that are very close to each other. Through these four outfalls, the storm sewer gives way to an open stream channel. The creek then flows through the National Arboretum for less than a mile before meeting the Anacostia River.The stream has been historically plagued by illegal oil and grease dumping, Above the open stream, there are a number of transportation-related facilities in the watershed, many of which do not properly dispose of waste oil. Also, oil and grease flush into the storm sewer during rain storms.
While much of the oil and grease originates from nonpoint sources in the upper half of the Hickey Run watershed upstream from the four outfalls, these pollutants find their way to the sewer system and are thus classified as point sources in the Hickey Run TMDL.... The TMDL requires a wasteload allocation of 11.9 lbs/day of oil and grease representing the load from these four sewer outfalls. Achieving this allocation requires a 88.9% reduction of the oil and grease currently being discharged from the outfalls....”
Contradicting provisions in the newly issued DC stormwater permit, top EPA officials, during a April 19 Congressional meeting on wet weather-related legislation (see AMSA's May 2000 Legislative Update), expressed support for a prohibition on numeric effluent limits specifying mass or concentration of a pollutant in a municipal stormwater discharge. The AMSA-led Urban Wet Weather Priorities Act of 2000 (H.R. 3570), includes language which precludes the Agency from issuing a numeric effluent limit for discharges from municipal separate storm sewers.
AMSA Confirms Low Levels of Mercury in “Clean” POTW Effluent
On May 5, AMSA submitted results of a three-POTW study, supported by the AMSA Technical Action Fund, to determine actual concentrations of mercury in “clean” POTW effluent. The study was led by the AMSA Mercury Workgroup which had an interest in additional sampling and analysis for mercury at four of the nine POTWs in EPA's 1994 Analytical Survey of Nine POTWs from the Great Lakes Basin. The four POTWs of interest had shown undetectable levels of mercury for one effluent grab sample taken at each of the facilities during EPA's study. EPA has used these POTWs as evidence that treatment plants could, after implementation of aggressive source control and pollution prevention efforts, meet mercury criteria in the range of 0.6 to 1.3 ng/l.A recent AMSA compilation of low level mercury sampling data at 23 POTWs had not indicated any concentrations less than detection in 397 sample events. The three POTWs that AMSA included in its study (the fourth municipality from EPA's study could not authorize participation due to a recent privatized takeover of its wastewater operations) were: West Bay County, Michigan, City of Luddington, Michigan, and the City of Delphos, Ohio.
Thirty samples were collected, 10 at each of the three plants. The results ranged from a minimum of less than 1.2 ng/l (below detect) and a maximum of 7.48 ng/l. Only 4 of the 30 samples were listed as below detect at less than 1.2 ng/l. The average concentration of all the samples was 2.07 to 2.23 ppt (depending on the handling of results below detection). This is less than the average of 7.71 ppt that was achieved at 23 POTWs in AMSA's May 20, 1999 compilation. However, this average effluent concentration is still almost twice that of the current GLI wildlife criterion level, and 83 percent of the samples do not meet the current GLI wildlife criterion of 1.3 ng/l for mercury. In addition to this targeted mercury sampling effort, AMSA's Mercury Workgroup is nearing completion of a sampling study on domestic and household product sources of mercury. AMSA plans to meet with EPA on May 23 to discuss the results of these two studies.
EPA Finalizes California Toxics Rule After “No Jeopardy” Finding from FWS/NMFS
On April 28, EPA finalized a regulation, known as the California Toxics Rule, to reinstate water quality criteria for toxic pollutants in the state's rivers, streams, lakes, enclosed bays and estuaries. The rule restores specific numerical criteria designed to protect human health and aquatic life from 64 priority toxic pollutants, including mercury, dioxin, selenium, PCBs, and dissolved metals. The rule will remain in place until the state adopts new water quality control plans that contain state water quality objectives for these pollutants. The state adopted a set of plans in 1991, but a 1994 state court decision invalidated them. In cooperation with the state, EPA in 1997 proposed the rule to provide interim criteria until California can adopt its own.Changes were made to the final rule based on recent decision from the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) that the rule is “not likely to jeopardize the continued existence of, or adversely modify critical habitats” for threatened or endangered species. These changes include postponing the aquatic life criteria for mercury and acute selenium, to allow more time for EPA to work with FWS and NMFS to address their concerns, and development of sediment criteria guidelines for cadmium, copper, lead, nickel, and zinc. Over the last several years, EPA has been working with the FWS and NMFS to ensure that the rule would prevent any adverse effects on threatened or endangered species, while protecting public health. To gain the approval of FWS and NMFS, EPA committed to work on several areas, including cadmium, mercury and selenium aquatic life criteria, sediment criteria guidelines, revisions to EPA's water quality criteria calculation model to reflect best available science, and the initiation of a process to develop a national methodology to derive site-specific criteria to protect federally-listed threatened and endangered species.
EPA Publishes Revisions to Sediment Quality Test Methods
On May 2, EPA announced the availability of published procedures for testing freshwater organisms in the laboratory to evaluate the potential toxicity or bioaccumulation of chemicals in whole sediments. This second edition updates methods originally published in 1994 (EPA/600/R-94/024). Copies of the complete document, titled “Methods for Measuring the Toxicity and Bioaccumulation of Sediment-associated Contaminants with Freshwater Invertebrates - Second Edition can be obtained from the National Service Center for Environmental Publications by phone at 1-800-490-9198 or on their web site at http://www.epa.gov/ncepihom/orderpub.cfml.EPA Proposes Rules on Public Access to Risk Management Program Information
On April 27, EPA and the U.S. Department of Justice proposed regulations governing public access to information concerning the potential off-site consequences of accidental chemical releases from industrial facilities. Off-Site Consequence Analysis (OCA) information, which includes “worst-case scenarios,” is information collected under section 112 (r) (7) of the Clean Air Act as part of regulated facilities' Risk Management Plans. The 1999 Chemical Safety, Information, Site Security and Fuels Regulatory Relief Act required the government to assess both the chemical risk reduction benefits of allowing public access to OCA information and the increased risk of terrorists and other criminal activity from posting the information on the Internet. The proposed rule attempts to address both of these concerns. Under this proposal, all of the OCA information would be available to the public through several means, but it would prohibit the Internet posting of those OCA data elements that could result in a significant risk of increased terrorist or criminal activity. EPA plans to conduct a public hearing on May 9 to discuss the proposal. EPA has requested comment on the proposal by June 8. For further information, see: www.epa.gov/ceppo.Region 4 Issues Final General Permit for Stormwater Discharges from Construction
On April 28 in the Federal Register, EPA Region 4 issued a final modification to its general permit for stormwater discharges associated with construction activity for the State of Florida and several Indian Tribal lands. The regulations at 40 CFR 122.4(d) and (i) prohibit EPA from authorizing discharges which will cause or contribute to the impaired use of waters of the U.S. Currently, construction sites discharging to waters listed in accordance with the requirements of Section 303(d) of the Clean Water Act would most likely be required to apply for individual stormwater permit coverage. Due to resource constraints on both the applicant and the NPDES permit issuing authority, EPA Region 4 concluded that additional permitting measures in the existing storm water general permit for construction activities are necessary to assure that storm water discharges to 303(d) waters, listed for total suspended solids, do not cause or contribute to the impaired designated use of a water body.EPA/OMB Consider Reduced Industry Reporting Requirements for TRI
In an effort to fulfill a mandate to reduce government reporting burdens, the Office of Management and Budget, hosted an April 28 roundtable discussion with various stakeholders on a proposal that some of the industrial facilities that file a Toxics Release Inventory (TRI) Form R should have the option to file a “Certification of No Significant Change from Prior Year” in lieu of the Form R for alternate reporting years. The TRI is a publicly available EPA database that contains information on specific toxic chemical releases and other waste management activities reported annually by facilities in certain industry sectors.During the meeting, EPA indicated that its proposal was in the very early stages of development, and it was interested in hearing concerns from stakeholders. Several criteria for certification were discussed, including quantitative and qualitative approaches. The potential revisions to the TRI report would be that facilities that filed a Form R in the year immediately before the reporting year to be given the option to file a certification stating: “the total amount of releases, transfers, one-time events, and on-site treatment, energy recovery and recycling, and the media distribution of those releases and other waste management for that chemical has not significantly changed from the prior year to the current reporting year.” The certification would not apply to persistent, bioaccumulative, toxic (PBTs) chemicals. POTWs, while not directly covered under reporting requirements of TRI, may utilize the information provided by industries in their industrial pretreatment program efforts. For more information contact: Elaine Stanley, EPA 202/564-2280.
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