Water Quality Issues
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 has formed a National Nutrient Team to guide the nutrient criteria development process and has also formed Regional Nutrient Teams in each EPA region. 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 are discussing the process for developing regional nutrient criteria based upon EPA's data collection effort. AMSA, via Regulatory Alert RA 99-8, has solicited membership input into a draft AMSA position statement on EPA's nutrient strategy. As discussed in the position statement, EPA's current approach to nutrients has the potential to redefine treatment standards for POTWs and require costly nutrient removal processes. AMSA would like to respond to EPA's nutrient development approach with a coordinated effort by AMSA municipalities at both the regional and national level. To advocate the position of municipalities, AMSA has urged members to contact their Regional Nutrient Coordinators and become involved at the Regional level. In addition, AMSA is soliciting involvement from its Member Agencies in a new Nutrients Workgroup to be convened under the auspices of the AMSA Water Quality Committee. The Nutrients Workgroup will track developments of the Regional Nutrient Teams, advocate a more reasonable approach to nutrient control through EPA/State meetings, and coordinate other activities as appropriate
On June 10, 1999, EPA held a national public stakeholder meeting in Crystal City, Virginia to discuss the development of national nutrient criteria. AMSA expressed serious concerns with EPA's efforts to promulgate national nutrient criteria. At the meeting, AMSA's Water Quality Committee Chair Norm LeBlanc faulted the agency for moving forward nutrient standards with little assurance that nonpoint sources, the primary source of nutrient loadings, will be adequately addressed. POTWs could bear the brunt of nutrient reductions while nonpoint sources continue unabated. LeBlanc also urged the agency to ensure that the criteria allow room to distinguish between nutrient enrichment and nutrient impairment. The nutrient ranges that EPA is considering would be more appropriate as guidelines that trigger further study of a water body to determine if an impairment exists. AMSA cautioned EPA that numeric nutrient standards could dramatically expand the number of waters targeted for total maximum daily loads and saddle municipal dischargers with a disproportionate share of loading reductions. CONTACT: Bob Cantilli, EPA 202/260-5546 or Mark Hoeke, AMSA 202/833-9106.
TMDL Revisions to be Proposed in Summer 1999
Background: Under CWA Section 303(d), states are required to identify waters in which technology-based effluent limitations are not sufficient to meet water quality-based standards, and requires states to develop TMDLs for these waters which will ensure that applicable water quality standards are met. Under Section 303, EPA must develop TMDLs when states fail to do so. In November 1996, EPA convened a federal advisory committee of stakeholder interests to develop recommendations concerning needed changes to the agency's TMDL program implementation strategy, as well as TMDL-related policies, guidance, regulations and priorities. AMSA has participated in the advisory committee and has provided input to EPA regarding potential impacts of regulatory and policy changes to POTWs.
Status: EPA plans to propose revisions to its total maximum daily load (TMDL) program regulations and accompanying guidance in the summer of 1999. On April 15, AMSA met with EPA officials to discuss details of the proposal. EPA describes the package as “aggressive,” requiring states to implement reasonable assurance that nonpoint source controls will be implemented, requiring the listing of threatened waters, and requiring the 303(d) list to serve as a basis for listing all impaired waters. EPA proposes that the 303(d) list be “segmented” into four separate lists: 1) waters impaired by pollutants requiring TMDLs; 2) waters where TMDLs have been completed, but where water quality is still impaired; 3) waters impaired by pollution that do not require the development of a TMDL; and 4) waters where best practicable technology will result in the attainment of the waterbody and where no TMDL is required. EPA also will propose modification of the listing cycle, and will solicit comments on two, four, and five year time frames. EPA expects to move the forthcoming listing cycle from the currently scheduled April 1, 2000 to October 1, 2000 at the earliest, providing at least six months from final regulation and guidance promulgation for states to develop new 303(d) lists.
There are also several NPDES issues that EPA hopes to address in the proposal including: 1) provisions to allow permits to be re-issued or extended in cases where they are not consistent with the TMDL allocation or for EPA to intervene if the State doesn't act to issue an expired permit; 2) expanded designation authority so animal feeding operations and aquaculture/silvaculture operations can be designated as point sources; and 3) allow for offsets for new or significantly expanded discharges where no TMDL exists permit . EPA has indicated that it will provide a 90-day comment review period upon publication of the proposed regulations which are expected to be published by mid-July 1999. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Don Brady, EPA 202/260-5368.
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. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Sue Gilbertson, EPA 202/260-9536.
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, EPA has been delayed in initiation of the study plan. In May, EPA released a revised study plan that proposes three categories of participating labs. Category 1 will consist of 9 labs whose participation will be paid for entirely by EPA as per the WET settlement agreement. These labs will perform the WET methods called for in the study and will be selected based on a low-bid proposal process. Category 1 labs will receive four blind test samples, with each sample being a single bulk sample preparation. Category 2 will be those derived from the set of pre-qualified volunteer laboratories. These additional labs (up to eleven) will be selected at random from the remaining list of pre-qualified laboratories, and be responsible for the entire cost of participation (including shipping and handling of samples). These labs will include AMSA agency-sponsored laboratories that have volunteered to participate in one or more methods in the study. Category 2 labs will receive the same types and number of samples as the Category 1 labs. Category 3 will be all remaining qualified volunteer labs that wish to participate in the study that were not selected in Category 1 or 2. Category 3 labs will also be responsible for the entire cost of participation, but will only receive three ampules of concentrated samples that would need to be diluted prior to initiating analysis. A full status report on the WET study will be sent to the AMSA membership via an upcoming Regulatory Alert. Pre-qualification documents are expected to be sent to laboratories and sponsors in June. AMSA has agreed to act as a central billing contact for volunteer labs and EPA's contractor during the study. CONTACT: Bill Telliard, EPA 202/260-7134 or Mark Hoeke, AMSA 202/833-9106.
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 summer 1999. AMSA's Water Quality Committee will review the guidance when available. CONTACT: Mark Hoeke, AMSA 202/833-9106.
AMSA Petitions EPA to Revise Great Lakes Wildlife Criteria for Mercury
Background: In AMSA's September 13, 1993 comments on the proposed Great Lakes Guidance, AMSA challenged the scientific merit of certain approaches used in the derivation of water quality criteria for the protection of wildlife. Among these approaches was the criteria methodology's use of toxicological effect-threshold data for non-piscivorous wildlife species with exposure parameters for piscivorous wildlife species. Piscivorous species (e.g., eagles, gulls, kingfishers), which evolved eating fish that contained naturally-occurring bioaccumulative substances (e.g., mercury), are highly unlikely to be as toxicologically sensitive to these substances as the non-piscivorous species (e.g,. mallards), which did not have such exposures during their evolution. AMSA was also concerned about the use of species sensitivity factors in the proposed wildlife criteria methodology. AMSA noted that using the above-described approach would render the resulting criteria overly conservative. By using the above approach combined with the species sensitivity factor, in essence EPA was saying that piscivorous species are likely to be not only as toxicologically sensitive, but more toxicologically sensitive to mercury than the non-piscivorous species tested. Good science simply did not support EPA's position. In the final Great Lakes Guidance, EPA elected not to change the derivation approach, and incorporated a threefold interspecies uncertainty factor (Great Lakes Water Quality Initiative Criteria Documents for the Protection of Wildlife: DDT, Mercury, 2,3,7,8-TCDD, PCBs, EPA-820-B-95-008, at 2-14 to 2-15 and Table 2-7). EPA appeared to assume that the application of the interspecies uncertainty factor was necessary in addition to the already illogically conservative derivation approach.Two years after publishing the Great Lakes Guidance, EPA has itself refuted its own position. In EPA's December 1997 Mercury Study Report to Congress (Report to Congress), EPA admitted that applying the interspecies uncertainty factor to the derivation of avian wildlife criteria for mercury is unjustified. On pages 5-11 to 5-12 of Volume VI of the Report to Congress, EPA stated that “. . . a review of the literature suggests that piscivorous birds possess a greater capability to detoxify methylmercury than do non-piscivorous birds.” On page 4-5 of the same document, EPA stated that “. . . among duck species, mallards possess less capability to detoxify methylmercury than piscivorous mergansers and goldeneyes.” On page 5-12, EPA concluded that “adjusting the [tested dose] for mallards even lower is, therefore, unjustified [emphasis added].” Consequently, EPA did not include an interspecies uncertainty factor greater than 1 in the Report to Congress derivation of avian wildlife criteria for mercury, despite using the same toxicological data as the Great Lakes Guidance. On January 19, 1999, the AMSA Mercury Workgroup met with EPA water program officials and presented its case for modifying the Great Lakes Water Quality Initiative (GLWQI) mercury wildlife criteria methodology, based on updated EPA data presented in the 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.
Status: Because of the Agency's lack of resources and interest to revise the mercury wildlife criteria, AMSA petitioned EPA on May 21, 1999 to initiate rulemaking proceedings to amend the mercury criterion for the protection of wildlife established in the Water Quality Guidance for the Great Lakes System. Specifically, the petition cites EPA's Mercury Study Report to Congress that stated that the Agency could no longer justify the “interspecies uncertainty factor” used in deriving avian wildlife criteria for mercury. By eliminating the use of the threefold interspecies uncertainty factor, the avian wildlife mercury criteria would change from 1.3 parts per trillion to 4.0 parts per trillion, an adjustment that could affect compliance with the mercury criteria for some publicly owned treatment works (POTWs) in the Great Lakes Basin. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Keith Linn Northeast Ohio Regional Sewer District 216/641-6000.
EPA Publishes 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: On June 8, 1999, EPA published a final "Guidelines Establishing Test Procedures for the Analysis of Pollutants; Measurement of Mercury in Water (EPA Method 1631, Revision B)." The final action makes available at 40 CFR part 136 an additional test procedure for measurement of mercury in aqueous samples. This rulemaking does not repeal any of the currently approved methods that measure mercury. EPA indicates that permitting authorities should decide the appropriate method based on the circumstances of the particular water sample measured. Use of EPA Method 1631 may be specified by the permitting authority when a permit is modified or reissued. EPA indicates that it does not intend for Method 1631 to be a de facto replacement for Method 245.1 or any of the other existing EPA-approved methods for measurement of mercury. EPA intends that permit writers specify the use of Method 1631 when measurement at very low levels is required, for example, to determine compliance with water quality-based effluent limitations duly established at very low levels. The regulation becomes effective July 8, 1999. CONTACT: Maria Gomez-Taylor, EPA 202/260-1639 or Mark Hoeke, AMSA 202/833-9106.
EPA Planning to Release Draft Anti-Degradation Guidance
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. A thirty-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.
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.
Human Health Criteria Development
Background: On August 14, 1998 EPA's published "Draft Revisions to the Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health" in the Federal Register. Among the changes presented in the proposal from the 1980 AWQC National Guidelines that may result in more restrictive water quality criteria include: 1) Replacing bioconcentration factors (BCFs) with bioaccumulation factors (BAFs); and, 2) replacing the default fish intake rate of 6.5 grams/day to 17.8 grams/day (to protect the general adult population and sport anglers) and 86.3 grams/day (to protect subsistence fishers). When finalized, the revised methodology will provide guidance to States for use in developing human health criteria as part of their water quality standards. In addition to the draft Federal Register notice, EPA has developed a Technical Support Document (TSD). The TSD includes more technical detail and is supplemented by three proposed criteria developed using the new methodology.
Status: AMSA submitted comments on these revisions on December 14, 1998. EPA hopes to finalize these revisions by the end of 1999, however, because EPA received a significant amount of new information and studies during the proposal comment period, it may delay finalization to allow for the incorporation of these data. New cancer guidelines may also delay finalization of the rule, as EPA may wait for these to be finalized (EPA's proposal includes expected cancer guidelines). On May 20, 1999 EPA held a public stakeholder meeting to discuss the Draft Methodology Revisions. During the meeting, EPA indicated that it is developing guidance on the establishment of site-specific BAFs, one of AMSA's major questions with the proposed methodology revisions. CONTACT: Denis Borum, EPA 202/260-8996 or Mark Hoeke, AMSA 202/833-9106.
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