AMSA November 2004 Regulatory Update

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The Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the November 2004 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to December 3, 2004. Unless another contact person is specifically listed, call Chris Hornback, AMSA’s Regulatory Affairs Director, at 202/833-9106 or e-mail him at chornback@amsa-cleanwater.org with any questions or input you have concerning the Update topics.

Top Stories

AMSA Provides Input to EPA Inspector General and Water Office on Pretreatment Report
On November 8, AMSA sent separate letters to the U.S. Environmental Protection Agency’s (EPA or Agency) Office of Water (http://www.amsa-cleanwater.org/advocacy/co/2008-11-08OWltr.pdf) and Office of Inspector General (OIG) (http://www.amsa-cleanwater.org/advocacy/co/2004-11-08OIGltr.pdf) that provided the Association’s perspective on the OIG’s final Evaluation Report, EPA Needs to Reinforce its National Pretreatment Program. The Report found that “reductions in industrial waste discharges to the nation’s sewer systems that characterized the early years of the pretreatment program have not endured.” The Association’s letter to the OIG disagreed with this finding, pointing out that the OIG failed to acknowledge the significant reduction of pollutants that are attributable to local limits, and relied too heavily on faulty data found in the Toxics Release Inventory and Permit Compliance System databases. AMSA did agree, however, with the Report’s assertion that reduced funding and staff resources at the federal level have slowed, and continue to hinder, the pretreatment program’s progress. The Association’s letter to the Office of Water strongly supported the OIG’s recommendation that the Agency finalize the Pretreatment Streamlining Rule as a key component of updating the pretreatment program. AMSA also urged EPA to update the “50 POTW Study” as soon as possible, and again offered its assistance to complete the study.

The Association plans to meet with EPA’s Office of Water Assistant Administrator, Benjamin Grumbles, later this month to discuss several key issues, including urging the Agency to finalize the Pretreatment Streamlining Rule and conduct a new “50 POTW Study.” For more information on these efforts, please contact Will Pettit, AMSA’s Manager of Regulatory Affairs, at 202/833-3280 or wpettit@amsa-cleanwater.org.

EPA Promulgates Final Bacteria Criteria for 21 Coastal States, Incorporates AMSA Comments
On November 16, 2004, EPA published a final rule (http://www.epa.gov/waterscience/beaches/bacteria-rule.htm#final) that sets bacteria standards for 21 coastal states and territories that had not updated their existing water quality criteria. Coastal states were required to set criteria that were as protective as EPA’s 1986 bacteria criteria (that use enterococci and E. coli as indicators) by April 10, 2004, a deadline imposed by the Beaches, Environmental Assessment and Coastal Health (BEACH) Act of 2000. The rule takes effect on Thursday, December 16. This rule may ultimately impact publicly owned treatment works (POTWs) discharging to coastal recreation waters, depending on the state where they are located.

AMSA’s August 9, 2004 comments (http://www.amsa-cleanwater.org/advocacy/comments/2004-08-09OW_2004_0010.pdf) on the proposed rule focused primarily on EPA's proposed uses for the single sample maximum (SSM) values that are part of the Agency’s 1986 criteria. AMSA was concerned that the SSM would be applied as a never to exceed value in the context of assessing attainment of standards, developing total maximum daily loads (TMDLs), and determining National Pollutant Discharge Elimination System (NPDES) permit compliance. AMSA stated that such application would place an unnecessary economic burden on POTWs, especially those dealing with sanitary and combined sewer overflows (SSOs and CSOs). Consistent with AMSA's comments, EPA's final rule recommends that the SSM be used only for making beach notification and closure decisions but does not preclude states from using the SSM for other Clean Water Act purposes (e.g., permitting or TMDLs). EPA reaffirms in the final rule that the geometric mean is the more relevant value for making water quality decisions because it is more reliable, subject to less random variation, and more directly linked to the underlying public health risk. Please see AMSA’s Regulatory Alert 04-18 (http://www.amsa-cleanwater.org/private/regalerts/ra04-18.cfm) for an updated table outlining the status of all 35 coastal states and territories to determine whether your state is affected by the final rule.

Biosolids

National Biosolids Partnership Obtains Federal Funding for Fiscal Year 2005
On November 22, Congress finalized EPA’s fiscal year 2005 budget and included nearly $1 million in federal funding for the National Biosolids Partnership (NBP). Immediately before the markup, AMSA met with staff of individual Representatives as well as staff of the VA-HUD Subcommittee to make an urgent appeal for the NBP funding. The VA-HUD bill was included as part of an end-of-year omnibus appropriations bill that members of Congress voted on during the November lame duck session. The funding will help the NBP continue its important work on behalf of municipal biosolids management practices, including its biosolids Environmental Management System (EMS) program.

In a related story, AMSA would like to congratulate the District of Columbia’s Water and Sewer Authority (DC WASA) and the Madison Metropolitan Sewerage District, Wis., for completing the NBP’s EMS program for biosolids. The agencies successfully completed the third party audit, demonstrating their implementation of an effective biosolids EMS that supports continually improving environmental performance, meeting regulatory compliance obligations, utilizing good management practices and creating meaningful opportunities for public participation. The EMS program is a key NBP initiative that helps improve communication between the utility and the public and maximizes the protection of public health and the environment. AMSA commends these two facilities for demonstrating their dedication to the advancement of environmentally sound and accepted biosolids management practices. For more information on the NBP, please visit the NBP website (http://www.biosolids.org/) or contact Lee Garrigan, AMSA’s Director of Legislative Affairs at 202/833-4655 or lgarrigan@amsa-cleanwater.org.

EPA to Conduct Sewage Sludge Survey Long Supported by AMSA
EPA is nearing completion of its study design for the targeted sewage sludge survey it aims to conduct next year on 15 pollutants and microbial agents. Over a year ago, in the Association’s July 2003 comments on EPA’s response to the National Research Council Biosolids Report, AMSA supported “EPA’s plan to conduct a targeted survey to help fill data gaps and inform decisions regarding further studies, rather than conducting a comprehensive national survey.” In those comments, AMSA also recommended that in designing the survey the Agency should “seek input from all stakeholders, including academia, state and federal agencies and POTWs” (http://www.amsa-cleanwater.org/private/legreg/outreach/2003-07-08cmts.pdf). EPA's Office of Science and Technology has begun peer review of the study, a process that will likely take six to eight weeks. Following peer review, EPA will incorporate any recommended changes and begin collecting data from roughly 100 wastewater treatment utilities next March.

The upcoming survey is designed to collect additional concentration data on a list of pollutants EPA identified for further investigation last December. Once EPA has the data in hand, it will update its sewage sludge exposure hazard assessment model with the updated concentration information to ascertain whether the pollutants require additional regulation. Such a decision would likely be made by the end of 2005. AMSA will continue to provide input to EPA on these critical issues.

AMSA Lends Supports to EPA Position on Biosolids Management Options
In an October 29, 2004 letter (http://www.amsa-cleanwater.org/private/legreg/outreach/2004-10-27AMSAGrumbles.pdf) to Assistant Administrator for Water Benjamin Grumbles, AMSA thanked EPA for its continued support of all biosolids management practices that meet the regulatory requirements of 40 CFR Part 503 and for reaffirming that the selection of a particular biosolids management option is a choice best made by each individual community. This came after Grumbles responded recently to requests from several state residual coordinators urging the Agency to develop a policy position favoring land application over alternative biosolids management methods, including land filling and incineration. Grumbles reemphasized the Agency’s long-held position that land application, incineration, land filling and surface disposal are all viable, effective biosolids management practices and that choosing between these options is a local decision.

Conference and Workshops

Registration Opens for AMSA’s 2005 Winter Conference on Sustainable Systems
Join your clean water colleagues in San Antonio, Texas, for AMSA’s 2005 Winter Conference, February 1 – 4, 2005, which will center around the theme of Sustainable Systems. AMSA’s Winter Conference has long served as a forum focusing on cutting-edge utility management issues, and this year’s program will explore ongoing and emerging issues that affect the management of public utilities across the nation. The conference program will focus on numerous areas of interest, including sustainable infrastructure, workforce, security, and environment. Reserve your hotel accommodations today by calling the Westin La Cantera, 210/558-6500, to ensure the special room rate of $175 single/double. The deadline for hotel reservations is Friday, January 7, 2005. AMSA’s 2005 Winter Conference will be preceded by a day-long AMSA/WERF Joint Meeting on POTW research priorities. If you are interested in attending the Joint Meeting, please contact Chris Hornback, AMSA’s Director of Regulatory Affairs, at 202/833-9106 or chornback@amsa-cleanwater.org. Register for the conference today on AMSA’s website (http://www.amsa-cleanwater.org/meetings/05winter/).

Water Quality

AMSA Granted Amicus Status in Precedent-Setting Chesapeake Bay Nutrient Permitting Case
On November 30, the Richmond, Va. Circuit Court heard arguments on AMSA and the Virginia Association of Municipal Wastewater Agencies’ (VAMWA’s) September motion to intervene in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). AMSA and VAMWA were granted amicus status in the case, and will be given the opportunity to file a brief and participate in oral arguments. AMSA’s brief in the case is due January 4, 2005. CBF wants the court to order Virginia to limit the amount of nitrogen that Onancock can discharge – before Virginia revises its nitrogen water quality standards and completes a nitrogen total maximum daily load (TMDL). AMSA and VAMWA will argue that scientifically-based nutrient water quality standards and TMDLs are key prerequisites to including nitrogen limits in Bay National Pollutant Discharge Elimination System (NPDES) permits. In a related matter, CBF sued EPA on November 10, arguing that the Agency had a mandatory duty to act on CBF’s recent petition for EPA to set federal regulations making nitrogen limits a mandatory activity as part of secondary treatment under the Clean Water Act. AMSA does not anticipate that CBF will be successful in this case given the broad deference courts give EPA when responding to such petitions. Additional information on this case is available on AMSA’s website (http://www.amsa-cleanwater.org/private/littrack/#cbf). For more information on the case please contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.

AMSA Comments on EPA’s Examination of Risk Assessment Practices
On November 5, AMSA commented (http://www.amsa-cleanwater.org/private/reg_outreach.cfm) on the EPA’s Staff Paper, An Examination of EPA Risk Assessment Principles and Practice. The paper reviewed EPA’s current methods for conducting risk assessments and is the first step in a multi-step process to engage interested stakeholders in a dialogue regarding the Agency’s risk assessment principles and methodologies. In its comments, AMSA reemphasized several points that were also raised by other stakeholders, including EPA’s excessive reliance on default values and the Agency’s tendency to multiply uncertainty factors that often result in an overestimation of risk. The Association urges EPA to maintain an ongoing and open dialogue with stakeholders on matters of risk assessment and risk management as many stakeholders are affected by the final results. AMSA will continue to work with EPA as it moves to improve the existing risk assessment methodologies.

EPA Staffing

Senate Confirms Four Key EPA Appointees
On November 19, four key EPA appointees were confirmed by the U.S. Senate after holds placed on them by several Senators were lifted. Benjamin Grumbles was confirmed as Assistant Administrator (AA) for the Office of Water. AMSA is scheduled to meet with the newly confirmed AA this month to discuss pretreatment streamlining, blending, and SSO policy, among other critical POTW initiatives. Stephen Johnson was confirmed as the EPA Deputy Administrator and Charles Johnson as the Chief Financial Officer. Ann Klee was confirmed as the Agency’s General Counsel. AMSA congratulates each of the four newly confirmed EPA officials.