AMSA Regulatory May 2003 Update

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The National Office of the Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the May 2003 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to June 5, 2003. A Regulatory Digest of activities currently tracked by AMSA can be found on the Association’s web site at http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm. Unless another contact person is specifically listed, call or email questions to Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Conferences

Register Today for AMSA’s Summer Conference
AMSA’s Summer Conference is set for July 15-18, 2003 in Boston, Mass., at the Fairmont Copley Plaza. The theme of the conference will be Water Quality and the Wastewater Community: Emerging Pollutants and New Challenges. Issues surrounding emerging pollutants, including endocrine disruptors, and the latest on mercury, water quality trading, and total maximum daily loads as well as other water quality topics will be addressed. The conference will also examine the heightened focus that the U.S. Environmental Protection Agency (EPA) and the States are now placing on existing pollutants such as nutrients and pathogens in many communities. Mark your calendar today for what is sure to be a valuable forum to explore these important topics. To register for AMSA’s Summer Conference and to review an updated conference agenda please visit the Association’s web site at http://www.amsa-cleanwater.org/meetings/03summer/.

Biosolids

AMSA Tracks Pending Issuance of Biosolids Rule and Delay of Dioxin Reassessment Release
With the looming October 17, 2003 court-ordered deadline to issue a final rule on dioxins in land applied biosolids, EPA is still in the process of finalizing the Agency-wide Dioxin Reassessment, an effort that began more than ten years ago. The Agency is set to ask its Science Policy Council on June 16, 2003, whether it should apply the reassessment’s recommendations in their draft form to the dioxins in land-applied biosolids rule since the reassessment will likely not be finalized before the October 17, 2003
deadline. While EPA wishes to include the most up-to-date, peer-reviewed science in the rule, using draft science may open the Agency to legal challenges. Furthermore, if the reassessment changes before its finalization, the Agency would then need to update the regulation to reflect the current science. If the “new science” is not included, however, EPA runs the risk of having to revise the rule once the dioxin reassessment is finalized. EPA’s decision whether to use the draft science will have implications beyond the biosolids program and AMSA is gathering information about the make-up of the Science Policy Council and, if the Association determines it is leaning toward using draft science, will weigh in on this key issue at that time.

AMSA Provides Input into Agenda for WERF’s Biosolids Research Summit
The Water Environment Research Foundation (WERF) will host a national Biosolids Research Summit in Washington, D.C., July 28-30, 2003. By hosting this summit, WERF and the U.S. Environmental Protection Agency, the events’ cosponsor, will take the first steps in identifying the greatest needs for additional research on the land application of biosolids in response to the July 2002 report of the National Research Council (NRC), Biosolids Applied to Land: Advancing Standards and Practices. In response to one of the core recommendations from the NRC report, public participation will be a key part of the Summit, bringing together a wide variety of stakeholders including land application opponents, to create a research agenda that addresses questions from all sides of the debate. Significantly, Ray Kearney, Assistant Director of the City of Los Angeles Department of Public Works and Chair of AMSA’s Biosolids Committee, is serving on the program committee which is developing the agenda for the Summit. EPA’s initial response to the NRC Report mirrored many of AMSA’s recommendations, and the Association will continue to voice its concerns as the Agency takes steps toward developing a research agenda and review of its land-application program.

Pretreatment

AMSA Applauds Agency Publication of Final MP&M Rule that Excludes Indirect Dischargers
On May 13, 2003, EPA published a final rule to establish wastewater controls for the Metal Products and Machinery (MP&M) industrial category. The final MP&M regulation establishes limitations and standards only for about 2400 facilities that directly discharge wastewater from “oily operations.” For years, AMSA has argued that additional controls on MP&M indirect dischargers were not necessary, and this final rule marks an important victory for the Association and its Pretreatment & Hazardous Waste Committee. The text of the final MP&M Rule can be found on the Agency’s web site at http://www.epa.gov/fedrgstr/EPA-WATER/2003/May/Day-13/w4258.pdf.

Water Quality

AMSA Pushes for a More Strategic EPA Mercury Action Plan
AMSA attended a listening session on May 6, 2003 on EPA's Mercury Action Plan, which is being developed by an intra-agency working group comprised of officials from each major Agency office. First drafted in 1998, the Plan is intended to outline the Agency's strategy for addressing multi-media mercury pollution and exposure over the next several years. AMSA and other stakeholders were critical of the 1998 draft, suggesting that it was little more than a list of activities EPA was then taking related to mercury. According to EPA officials, the updated version of the Plan, expected to be released this fall, will be more strategic and include a set of goals and plans for measuring progress toward these goals. AMSA highlighted the activities of its Mercury Workgroup, including its studies on residential sources of mercury, the effectiveness of pollution prevention programs, and a new study to evaluate programs requiring dental offices to install amalgam separation equipment. AMSA has learned that State and environmental groups are criticizing the Agency for not going far enough with its Plan, stating it should be government-wide and not just cover EPA activities. Although EPA had planned to hold a July 8-9, 2003 stakeholder forum on mercury, the Agency has cancelled this meeting in order to focus its resources on finishing the Draft Plan. AMSA will continue its push to have EPA head up a national mercury strategy, that takes into account all sources of mercury, whether domestic, industrial, or international.

AMSA Learns of Ongoing Interagency Discussions on Watershed Rule
Just prior to its National Environmental Policy Forum in May, AMSA learned that changes might be made to the nonpoint source (NPS) provisions of EPA’s draft Watershed Rule. While the potential changes are not drastic, they may affect some publicly owned treatment works (POTWs), especially those in the Pacific Northwest. Contrary to rumor, however, EPA has said it will only include language about gross allocations to NPS, not allocations to NPS categories. One of the more contentious issues that is keeping the Agency from publishing the rule is one raised by the Army Corps of Engineers and hydro-dam operators. They are concerned that the rule would classify dams as point source dischargers, thereby subjecting dams to Clean Water Act temperature standards, an expensive requirement. At the Association’s May Policy Forum, Ben Grumbles, Deputy Assistant Administrator in the Office of Water, stated that it is still a question whether to proceed with the Watershed Rule, and if the Agency does indeed proceed, whether the result will be a formal rulemaking or a series of guidance documents. AMSA on its own, and as a participant in a broad coalition in support of moving forward with the rulemaking process, will continue to meet with EPA and other federal agency officials to urge them to issue the Watershed Rule for notice and comment.

AMSA Continues to Advocate in Regulatory, Legal Arenas on Whole Effluent Toxicity
On May 30, 2003, AMSA and its municipal partners, along with several other litigants, filed a settlement proposal with EPA and the U.S. Department of Justice seeking to settle a March 31, 2003 suit against EPA that was filed in the District of Columbia Circuit Court of Appeals challenging the Agency’s November 19, 2002 final WET test methods (67 Fed. Reg. 69952). AMSA hopes to reach an agreement with EPA on a number of WET issues, including numeric versus narrative criteria for WET, the WET methods’ ability to detect toxicity in undiluted effluent, WET test acceptability criteria, and the ramifications of single WET test failures. AMSA and the POTW coalition filed a nonbinding statement of issues with the court on April 30. The settlement proposal outlines the measures that, if taken by EPA, would adequately address the litigants’ concerns and provide a basis for settlement.

In April, AMSA met with key EPA Office of Wastewater Management (OWM) officials to discuss ways of alleviating some of the problems with the WET methods by changing the way the methods are implemented. Some of the concepts discussed with OWM, including the limitation approach, are also contained in the settlement proposal. AMSA must now await word from EPA and DOJ regarding any possible settlement negotiations and will continue its discussions with OWM on implementation fixes.

Wet Weather

AMSA Continues to Advocate for Release of a Guidance Allowing the Practice of Blending
With EPA’s Office of Water ready to issue its blending guidance, the primary roadblock to issuing the guidance remains the Agency’s enforcement office. In an effort to better understand the enforcement office’s position, and to provide them with a statement of the Association’s position on blending, AMSA met with the Assistant Administrator for Enforcement & Compliance Assurance (OECA), John Peter Suarez, and other OECA officials on May 30, 2003. Critically, in addition to the OECA officials, a representative from Deputy Administrator Linda Fisher’s office participated in the meeting. AMSA believes a national blending policy should state that blending is not a bypass as defined by 40 CFR §122.41(m), as long as POTWs meet appropriate conditions, and that permitting agencies should be authorized to incorporate blending as an “alternative flow routing scenario” in permits.

One possible OECA approach would require a “no feasible alternative” determination akin to the bypass regulations on top of the provisions in the Office of Water guidance. AMSA was ably represented by Lisa Hollander, Assistant General Counsel, Northeast Ohio Regional Sewer District, Cleveland, Ohio, David Williams, Director of Wastewater, East Bay Municipal Utility District, East Bay, Calif., and Jim Canaday, Engineer-Director, Alexandria Sanitation Authority, Alexandria, Va., at the meeting with OECA. AMSA’s PowerPoint presentation from this meeting is also available for member use at http://www.amsa-cleanwater.org/private/legreg/outreach/05-30-03revBlendingPresentation.ppt. In addition to the meeting, AMSA sent a letter on May 16, 2003 to EPA’s Deputy Assistant Administrator, Linda Fisher, urging the Agency to release a blending guidance that recognizes blending as a viable option to treat peak excess flows. AMSA’s letter is available on the Association’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/05-16-03Fisher.pdf. While no timetable has been set, AMSA will continue to push for the guidance’s release.

AMSA Releases Wet Weather Survey Report at Annual Meeting
AMSA's Wet Weather Survey Report, which was released at AMSA’s 2003 National Environmental Policy Forum, provides an overview of the data collected from AMSA’s wet weather member survey and brings together critical information that will add clarity to the complex factors POTWs consider when sizing their sewer collection systems. Taken together, the results of the survey underscore the importance of flexible, performance-based approaches when developing national standards, in lieu of prescriptive, one-size-fits-all requirements. AMSA extends special thanks to its SSO Workgroup and Wet Weather Issues Committee for their hard work in preparing both the survey and the report. The report and its underlying survey data are available online at http://www.amsa-cleanwater.org/advocacy/wwsurvey/.

EPA Staffing

Administrator Whitman Resigns, Bush Weighs Options for Replacement
On May 21, 2003, EPA Administrator Christie Whitman announced she will resign her post as Administrator effective June 27. Whitman cited personal family reasons for her departure. President Bush, who has 210 days to name a successor, is considering a list of possible replacements which is said to include former Michigan Gov. John Engler (R), Florida Environmental Protection Secretary David Struhs, and Josephine Cooper, a former EPA official and current president and CEO at the Alliance of Automobile Manufacturers. Another option is to name Deputy Administrator Linda Fisher as Administrator or to have her serve in the capacity of Acting Administrator, while leaving the Administrator post empty.