Wet Weather Issues
EPA Releases Memorandum on the Status of CSO Policy Implementation
Background: At the July 28-29, 1997 meeting of EPA's Urban Wet Weather Advisory Committee, the committee discussed whether EPA should transmit a letter to Regions and States "reminding" them of the CSO policy implementation language that stipulates "development of the long-term plan should be coordinated with the review and appropriate revision of WQS...." During that meeting, EPA agreed to develop a letter which discusses a broad suite of CSO implementation issues, including review and revision of water quality standards.
Status: On May 19, 1998, EPA issued a memorandum to Regions and States summarizing the status of national CSO implementation and identifying where increased efforts are necessary, including implementation of nine minimum controls, development of long-term control plans, and revision of water quality standards. In short, the memorandum states that only 52 percent of the CSO communities are currently implementing the nine minimum controls, and another 25 percent have not yet implemented the nine minimum controls, but are under an enforceable requirement to do so in the future. The memo further states that approximately 33 percent of CSO communities are moving ahead to implement long-term CSO controls and another 28 percent are subject to an enforceable requirement to develop a long-term CSO control plan. In addition, EPA also recognizes the need for evaluating the attainability of water quality standards during long-term CSO planning, and highlights its goal of achieving 100 percent permitting consistency with the CSO Policy for FY 1999. A copy of the memorandum was sent to AMSA members with CSO responsibilities and AMSA's Wet Weather Issues Committee. The memorandum can also be found in the Regulatory Outreach Section of AMSA's web site at: http://www.amsa-cleanwater.org/private/reguloutreach/wetweather/bobpmem.cfm. CONTACT: Ross Brennan, EPA 202/260-6928 or Mark Hoeke, AMSA 202/833-9106.
AMSA Comments on Proposed Stormwater Rule
Background: EPA's proposed stormwater phase II rule regulating stormwater discharges from small municipal separate sewer systems and small construction sites was published in the January 9, 1998 Federal Register. The proposed rule would require smaller municipalities within urbanized areas to apply for NPDES permit coverage by May 31, 2002 and implement a mix of best management practices to "reduce the discharge of pollutants to the maximum extent practicable and protect water quality."
Status: AMSA submitted comments on the proposed rule on April 9, 1998. A copy of the comments can be found in the Regulatory Outreach Section of AMSA's web site at http://www.amsa-cleanwater.org/private/reguloutreach/review.cfm. AMSA continues to participate in EPA's Stormwater Phase II advisory committee which is continuing to meet to discuss comments received on the rule proposal. The next meeting of EPA's Stormwater Phase II Advisory Committee will be held on June 25-26, 1998. CONTACT: George Utting, EPA 202/260-9530 or Mark Hoeke, AMSA 202/833-9106.
Environmental Appeals Board Upholds EPA Stormwater Permitting Policy
Background: In March 1997, the Arizona Center for Law in the Public Interest, which filed the request on behalf of the Defenders of Wildlife and the Sierra Club, challenged EPA's interim stormwater permitting policy on numeric effluent limitations by requesting an evidentiary hearing regarding the issuance of the permits for five municipalities in Arizona. Also at issue, was whether EPA should be required to include whole effluent toxicity testing in these permits.
Status: On May 21, 1998, EPA's Environmental Appeals Board (EAB) denied a petition filed jointly by the Defenders of Wildlife and the Sierra Club seeking review of issues related to stormwater permits issued by EPA Region IX to the City of Tucson, Pima County, the City of Phoenix, the City of Mesa and the City of Tempe (all in the State of Arizona). AMSA participated in the proceedings as amici, along with the National Association of Flood and Stormwater Management Agencies, the National League of Cities, and the National Association of Counties. Two issues of particular interest to AMSA members were the petitioners insistence that these storm water permits contain: 1) numeric water quality-based effluent limits, and 2) whole effluent toxicity (WET) testing. These issues presented a direct challenge to EPA's August 1996 Interim Stormwater Permitting Policy, which stipulates that the most appropriate form on effluent limitations in first- and second-round municipal stormwater permits are best management practices (BMPs). EPA's May 21 decision has been forwarded to AMSA members, via Legal Alert 98-3. CONTACT: Mark Hoeke, AMSA 202/833-9106 or George Utting, EPA 202/260-9530.
EPA Commits to Reconvening SSO Federal Advisory Committee
Background: EPA is crafting a national framework to guide the Agency in revising regulations and guidance to address SSO permitting and enforcement issues. A federal advisory committee, made up of municipal (including AMSA), environmental, EPA, and state interests met from November 1994 to December 1996 to discuss framework and implementation issues.
Status: On May 18, AMSA representatives met with Bob Perciasepe, EPA's assistant administrator of the Office of Water and Steven Herman, assistant administrator of the Office of Enforcement and Compliance Assurance. The meeting was requested by AMSA and other municipal representatives of EPA's SSO Federal Advisory Committee (FACA) to discuss concerns regarding the derailed FACA process and substantive issues relating to EPA's recent draft SSO strategy "blueprint." AMSA called on EPA to commit to reconvening the FACA prior to the finalization of a national SSO strategy, and began a substantive dialogue with Perciasepe, Herman, and other high-level program and enforcement officials over concerns with liability defenses for unavoidable SSOs and the allowance of permitted wet weather facility discharges at less than secondary treatment. As a result of the meeting, EPA has committed to reconvening the FACA after completing its internal agency discussions, and working with AMSA to resolve remaining technical and legal issues. Also, on May 28, AMSA received a list of questions from Eric Schaeffer, Director, EPA's Office of Regulatory Compliance regarding the development of a national sanitary sewer overflow policy. The questions were originally posed as part of Schaeffer's comments during the "Regulatory Perspectives" panel session at AMSA's May 16-20 National Environmental Policy Forum . EPA is still attempting to reach internal consensus on the development of a national SSO policy. Among the types of questions presented include: 1) how would AMSA define "unavoidable " as it relates to SSOs; 2) how would AMSA define "wet weather" in the context of SSOs; 3) how would AMSA define a "wet weather treatment system"; 4) how would wet weather facility discharges impact the attainment of water quality standards in the receiving streams; and 5) does AMSA have a legal theory for regulating discharges from separate systems differently from combined systems? Several other questions were also raised. . The SSO federal advisory committee municipal caucus will lead in the development of a response. CONTACT: Kevin Weiss, EPA 202/260-9524, or Mark Hoeke, AMSA 202/833-9106.
EPA Office of Water - Watershed Alternative Policy
Background: EPA's Urban Wet Weather Flows Advisory Committee (UWWFAC) has been working for the past two and a half years to develop a document titled, "A Watershed Alternative for the Management of Wet Weather Flows." The document is intended to express EPA's support for a process of pursuing a watershed approach as an alternative to the traditional NPDES permitting approach for meeting water quality standards through control of individual wet weather point sources, and builds upon EPA's previous watershed-related efforts.
Status: EPA is determining whether to move forward with the policy document. The Committee's Watershed Workgroup does not agree with EPA's views that "enforceability" must be retained as one criteria for determining allocation of loading reduction responsibilities. AMSA's priority issues were the incorporation of "proportionate share principles" (i.e., assigning responsibility for loading reductions based on the proportion of current loading contributions) into the document, and a discussion of "temporary modifications of standards," a form of variance that can be for multiple sources and pollutants that changes the standard for a limited period only (keeping the underlying standard otherwise in place) may be used where appropriate measures are in place to assure progress toward the attainment of the underlying water quality standards. EPA has indicated that it will explore various types of variance to complement and support the watershed approach. CONTACTS: Mark Hoeke, AMSA 202/833-9106 or Will Hall, EPA 202/260-1458.