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AMSA November 2002 Regulatory Update

Member Pipeline - Regulatory - November 2002 Update

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: December 6, 2002

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AMSA’s National Office is pleased to provide you with the November 2002 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to December 6, 2002. A Regulatory Digest of activities currently tracked by AMSA can be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm. If you have any questions or comments, please contact the AMSA National Office at 202/833 AMSA or info@amsa-cleanwater.org.

Plan Now To Attend AMSA’s 2003 Winter Conference
This year’s AMSA management conference, The Evolving Public Utility… Leading the Workforce of Today, set for February 4-7 in scenic Santa Fe, New Mexico, will examine essential issues, developments, and trends that support effective utility leadership of the workforce of today … and tomorrow. In addition to the conference agenda, all of AMSA’s technical committees will be meeting throughout the week. With the holiday season on our doorstep, now is the time to reserve your hotel accommodations for the conference by calling the Eldorado Hotel, 800/955-4455, by the January 3 deadline. Conference information and registration materials are available online on AMSA’s web site at http://www.amsa-cleanwater.org/meetings.

Biosolids

AMSA Member Participation Sought by EPA in Biosolids Methods Validation Study
The U.S. Environmental Protection Agency’s (EPA’s) Office of Science and Technology is seeking the assistance of AMSA member agency laboratories to validate analytical methods for the measurement of certain biosolids parameters. Initially begun in 1997, EPA’s validation efforts have been postponed until now due to resource constraints. EPA hopes to identify a minimum of eight (8) qualified volunteer laboratories for each method. Each laboratory may choose to participate in the validation of any or all of several draft methods. A paid referee laboratory will collect, analyze, and prepare biosolids samples of known composition and distribute samples to participating laboratories for analysis using the study methods. In addition to sample analyses, participating laboratories will also be required to prepare and analyze all quality control samples and follow all procedures included in the methods. Analytical results generated by the participating labs will be used to develop performance specifications for each method, and draft methods will be finalized based on the results of the study.

EPA had planned to begin the study in September 2002. However, several of the volunteer laboratories that have already agreed to participate have indicated that the January/February 2003 timeframe is preferred due to a reduced laboratory work load during those months. Depending on whether EPA can recruit the requisite number of laboratories, the Agency is now targeting the January/February timeframe to begin the study. Interested AMSA member laboratories should contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

EPA Plans Response to NRC Report; Recommends Continued Management Under Part 503
In an October 31 letter, EPA set out its schedule for responding to the July 2002 report prepared by the National Research Council (NRC) on the land application of biosolids. This report was the result of an Agency request for assistance in evaluating regulatory requirements and non-regulatory measures with respect to land application. The report generally concluded that there is no documented scientific evidence that management of biosolids in accordance with the Part 503 rule has failed to protect public health. The letter, signed by EPA's Assistant Administrator (AA) for Water G. Tracy Mehan, III and Paul Gilman, AA for EPA's Office of Research and Development and sent to EPA's Regional Administrators, indicates that by April 2003 the Agency will announce in the Federal Register, and solicit public comment on, its proposed plan of action in response to the NRC report. The Agency plans to publish its final action plan in the Federal Register by January 2004. EPA agrees with the NAS regarding the need for additional studies on the potential effects of biosolids, and recommends that biosolids continue to be managed in full compliance with the Part 503 rule. EPA also offers support for the National Biosolids Partnership's (NBP’s) efforts to expand the use of voluntary environmental management systems (EMSs) for biosolids. AMSA will likely provide EPA with recommendations on its proposed action plan and will voice POTW concerns during the notice and comment process. The EPA letter may be found on AMSA’s web site at http://www.amsa-cleanwater.org/private/legreg/outreach/10-31-02biosolidsepaletter.pdf. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA to Review Article on Health Impacts of Biosolids
AMSA’s Board of Directors in late November voted to dedicate $3,000 from the Technical Action Fund (TAF) to facilitate the scientific review of a recently published article on the potential health effects of biosolids. The research article, co-authored by David Lewis, was published in an online public health journal in June of this year (BioMed Central (BMC) Public Health, 2002). The article, “Interactions Of Pathogens And Irritant Chemicals In Land-Applied Sewage Sludge (Biosolids),” has several key limitations or omissions, dealing with the potential impacts of recall bias on the study, the limitations of modeling and exposure scenarios, as well as the presence of Staphylococcus aureus in digested biosolids. Since its publication, the article has received significantly more attention than AMSA had originally anticipated. The goal of the proposed scientific review will be to underscore the limitations of the article and their potential impact on the conclusions; the review is not intended to personally discredit the authors of the article. Upon completion of the review, a response article will be submitted to the same journal (BMC Public Health) for publication. For further information, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.

 

Pretreatment

AMSA Hosts Another Successful Pretreatment Coordinators Workshop
The thirteenth AMSA/EPA Pretreatment Coordinators Workshop (Philadelphia, PA - November 20 - 22) featured many “hot” topics for the pretreatment professional, including: the future of the effluent guidelines program, solutions for oil and grease, the challenge of emerging pollutants, enforcement, and pretreatment-related security issues. The Pretreatment Workshop brought pretreatment professionals together to exchange experiences and ideas and to discuss pertinent issues with local, state and federal policymakers. Key EPA officials, including Jim Hanlon, Office of Wastewater Management Director, were on hand to discuss the direction the Agency is taking on key issues like effluent limitation guidelines and the pretreatment streamlining rule. AMSA thanks all the participants for making the 2002 AMSA/EPA Pretreatment Coordinators Workshop such a success. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Learns of Delay in Issuance of Final Effluent Limitation Guidelines for MP&M Facilities
AMSA learned from EPA officials at its recent Pretreatment Workshop that the court-ordered deadline of December 31, 2002 to publish a final rule establishing effluent limitation guidelines for the metal products and machinery industry category has been postponed until February 14, 2003. The reason for this delay is to ensure that the data used to support the final action is accurate and complete. The original deadline was stipulated in a consent decree between EPA and the Natural Resources Defense Council (NRDC). For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Tracks EPA Release of Draft Strategy for National Clean Water Industrial Regulations
On November 29, EPA released its Draft Strategy for National Clean Water Industrial Regulations (Draft Strategy) (67 Fed. Reg. 71165). The Draft Strategy describes a process to identify existing effluent limitations guidelines (ELGs) that EPA should consider revising, and to identify any industrial categories for which the Agency should consider developing new ELGs. EPA is required to carry out this review every two years under section 304(m) of the Clean Water Act. EPA intends this new strategy to guide ELG development once the Agency’s obligations under an existing consent decree with NRDC are completed.

The Agency is seeking comment on several parts of the Draft Strategy. Four factors being considered for evaluation of existing effluent guidelines and the need for new guidelines are:

In addition, the November 29 Federal Register notice announced a public meeting scheduled for Wednesday, January 15, 2003 in Washington, D.C., and the Industrial Wastewater and Best Available Treatment (BAT) Technology Conference, which will be held February 26-28, 2003 in Nashville. For more information on the conference, please visit EPA’s web site at http://www.epa.gov/waterscience/pollcontrol/bat.htm. AMSA plans to be very active on this issue in the coming months. AMSA will prepare a Regulatory Alert in the next few weeks to highlight the major points in the strategy and will meet with EPA early next year to provide feedback. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

 

Water Quality

AMSA’s Whole Effluent Toxicity Workshop Enjoys Large Turnout
AMSA’s Whole Effluent Toxicity Workshop was held November 6-8, in Denver, Colorado. Much of the Workshop focused on providing POTW personnel with additional insight into understanding and interpreting WET test results. Due to the unreliability of the methods, and the uncertainty of EPA’s implementation process, the importance of technical personnel working with utility attorneys, and vice versa, was shown to be of vital significance and was emphasized throughout the Workshop. Perhaps the most timely and provocative discussion was a joint Law/Whole Effluent Toxicity (WET) session, with participants from AMSA’s Law Seminar, exploring and analyzing the technical and legal ramifications of EPA’s November 8 approval of ten WET test methods. This joint session reinforced the importance of collaboration between both legal and technical experts and of developing an understanding of each others’ areas of expertise to being effective in the judicial process and to negotiating practical WET requirements that are both scientifically and legally sound. Attendance at the Workshop exceeded AMSA’s projections and made for a lively discussion and, more importantly, a productive exchange of experiences. WET Workshop notebooks, containing the presentation and supporting material for all presentations, are available for purchase on AMSA’s web site at http://www.amsa-cleanwater.org/meetings/.

EPA Publishes Final WET Rule, AMSA Considers Next Steps
On November 19, EPA released its final Guidelines Establishing Test Procedures for the Analysis of Pollutants; Whole Effluent Toxicity Test Methods (67 Fed. Reg. 69951). In the final rule, EPA ratified approval of ten of the twelve test procedures for measuring the toxicity of effluents and receiving waters. These test procedures are commonly referred to as whole effluent toxicity or WET test methods. In addition, EPA revised some of the WET test methods to improve performance and increase confidence in the reliability of the results. EPA’s final rule satisfies settlement agreement obligations designed to resolve litigation over an earlier rulemaking that originally approved WET test methods. AMSA is currently reviewing the rule and will provide a detailed analysis by way of a Regulatory Alert in the coming weeks. Initial reaction from the National Office is that many of the comments AMSA made on the proposal were not adequately addressed. AMSA is considering what further steps can be taken to ensure that WET testing requirements are implemented in an equitable fashion, including the possibility of legal action. For more information, please contact Chris Hornback, AMSA, at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Tracks Release of EPA’s Enforcement and Compliance History Online Web Site
EPA has released a pilot information tool called Enforcement and Compliance History Online (ECHO) that gives the public and industry direct access to the current environmental compliance record of more than 800,000 regulated facilities nationwide, including water and wastewater sites. When final, ECHO will provide detailed facility reports including federal and state compliance inspections, environmental violations, recent formal enforcement actions taken, and demographic profiles of surrounding areas. All of the information on ECHO was previously available to the public, including information on POTWs obtained through EPA’s permit compliance system (PCS). EPA is seeking comments on the ECHO’s content, design, and data accuracy. AMSA will review ECHO, found at http://www.epa.gov/echo, and will comment if necessary. For further information, contact Greg Schaner, AMSA, at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Tracks Release of EPA/USGS National Environmental Methods Index
On October 31 EPA and the U.S. Geological Survey (USGS) announced the National Environmental Methods Index (NEMI) with the release of the web site http://www.nemi.gov. The purpose of NEMI is to provide a mechanism to compare and contrast the performance and relative cost of analytical, test, and sampling methods for environmental monitoring. NEMI is a free web-based, online clearinghouse of environmental monitoring methods. The NEMI database contains method summaries of laboratory and field protocols for regulatory- and non-regulatory-related water quality analyses. By visiting http://www.nemi.gov, users can access up-to-date methods information, based on analyte, media, or performance data. EPA and the USGS hope that NEMI will allow uses to compare methods at a glance, find the method that best meets their needs, and share monitoring data among different agencies, using different methods at different times. For further information, contact Will Pettit, AMSA, at 202/833-3280 or wpettit@amsa-cleanwater.org.

AMSA Continues to Push for Release of Proposed Watershed Rule
Office of Management & Budget (OMB) review of EPA’s proposed Watershed Rule, which would revise current requirements for the development of total maximum daily loads (TMDLs), is being held up as several farm groups negotiate with the administration on several nonpoint source-related measures. Although EPA was poised to send the proposed rule to OMB only a few weeks ago, AMSA understands that concerns raised by several prominent agriculture organizations over EPA’s role in reviewing nonpoint source (NPS) “load allocations” are causing delays in the release of the proposal. These groups are resisting a strong EPA role in reviewing NPS load allocations, despite the willingness by other agriculture groups to accept this role in the rule proposal phase. EPA has stated that it will decline to issue the proposal altogether should the decision be made to omit Agency review of NPS load allocations altogether. AMSA believes that scrapping the proposal at this time will leave the TMDL program in further disarray and will sacrifice improvements expected to result from the rulemaking process. AMSA is actively working with a broad array of industrial and agricultural groups to help prevent the proposal from being shelved and to demonstrate the solid support for moving forward with the Watershed Rule.

In a related matter, EPA sent a proposal in late November to OMB to withdraw the 2000 Clinton Administration rule. Should this proposal succeed, the 1992 TMDL rule would remain in place until a replacement rule is finalized. It is worth noting that despite the absence of a revised rule, EPA recently reported that 18.2 percent (or 7,655) of the required 42,175 TMDLs have been completed since 1999. Further Watershed Rule updates will follow as developments transpire. For further information, contact Greg Schaner, AMSA, at 202/296-9836 or gschaner@amsa-cleanwater.org.

 

Wet Weather

AMSA Tracks SSO Rule Progress as EPA Debates Regulatory Alternatives
AMSA has learned that internal EPA negotiations are continuing on the extent and description of various regulatory alternatives in the Agency’s proposed sanitary sewer overflow (SSO) preamble. As a result of current differences of opinion among the various EPA offices and Regions, the Agency has held up the initiation of Final Agency Review (FAR) on the proposal, despite earlier predictions that this process would already be completed. The FAR process requires all relevant EPA offices to comment on the proposal and reach consensus on the draft rule’s provisions and preamble discussion before releasing it to OMB. The FAR process usually takes about two weeks. OMB will then have 90 days to review the proposal. AMSA understands that EPA is hoping to begin the FAR process as soon as possible, but that the process will be delayed until the Agency can arrive at a greater level of consensus internally on the preamble’s discussion of alternatives. Among the alternatives that are being considered for inclusion in the preamble is AMSA’s concept of using implementation of the capacity, management, operation and maintenance (CMOM) plans as the standard for SSO control, instead of the current zero overflow standard in the proposed rule. AMSA will keep its members informed of developments in the SSO arena as they occur. For further information, contact Greg Schaner, AMSA at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Reviews EPA Memo on TMDL Allocations for Municipal Stormwater Discharges
EPA’s Office of Wastewater Management and Office of Wetlands, Oceans & Watersheds released on November 22 a policy memorandum to the Regions clarifying existing requirements for establishing TMDL wasteload allocations (WLAs) for municipal stormwater discharges. A copy of the policy memorandum can be downloaded at AMSA’s http://www.amsa-cleanwater.org/private/legreg/outreach/112202final-wwtmdl.pdf. It has been AMSA’s long-standing position that, due to the unique constraints of municipalities and the largely unpredictable nature of urban runoff, the performance of stormwater controls, and storms in general, the Clean Water Act established a specialized pollutant reduction standard (i.e., “maximum extent practicable”) for municipal separate storm sewer systems (MS4s) which requires progressive implementation of best management practices (BMPs), rather than compliance with specific numeric criteria. AMSA prevailed on this position in the Defenders of Wildlife v. Browner lawsuit (see AMSA Legal Alert at http://www.amsa-cleanwater.org/private/legalalerts/leg99-5.cfm), but the court left open the possibility that additional pollutant requirements may be required. AMSA has been concerned that WLAs in a TMDL may lead some states to impose specific numeric criteria on MS4 permittees, notwithstanding the Defenders of Wildlife decision and past EPA guidance recommending BMPs as the primary control vehicle. After a cursory review of the policy memorandum, AMSA believes that while EPA explains how WLAs can be expressed as BMPs, it provides significant discretion to the states to impose numeric criteria. AMSA will provide a more thorough summary of the policy memorandum in a coming Regulatory Alert. For more information, contact Greg Schaner, AMSA at 202/296-9836 or gschaner@amsa-cleanwater.org.

 

EPA Staffing Issues

Effluent Guidelines Director Moves to Wastewater Management Office
AMSA has learned that Sheila Frace, Director of the Office of Science and Technology’s Engineering and Analysis Division, responsible for the development of effluent guidelines, will take over as Director of the Municipal Support Division, in the Office of Wastewater Management. Sheila replaces Rich Kuhlman, who will head up EPA’s grants administration office. Mary Smith, Director of the Indoor Environments Division of the Office of Air and Radiation will head up the Engineering and Analysis Division. The changes are expected to be effective in February 2003.