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AMSA October 2003 Regulatory Update

Member Pipeline - Regulatory - October 2003 Update

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To: Members & Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: November 7, 2003

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The National Office of the Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the October 2003 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 7, 2003. 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.

Upcoming Meetings

Last Chance to Register for AMSA’s 2003 Pretreatment Coordinators Workshop in Seattle
Don’t miss your last chance to register for the 2003 AMSA/EPA Pretreatment Coordinators Workshop to be held November 19-21, 2003, in Seattle, Wash., at the Renaissance Madison Hotel. This year’s highly informative Pretreatment Workshop will feature many timely topics including: industrial user negotiations, effluent limitations guidelines; emerging pollutant challenges; fats, oils, and grease, and sanitary sewer overflows. The Workshop provides an exceptional opportunity to interact with other professionals in the pretreatment community as well as state and federal regulators during informative discussions, panels and strategy sessions. Simply stated, the Workshop is a must for any pretreatment coordinator! For more information and to register online, go to the Association’s website at http://www.amsa-cleanwater.org/meetings/03pret/.

Biosolids

AMSA Responds to Center for Food Safety Petition to Stop Land Application of Biosolids
On October 7, 2003, the Center for Food Safety (CFS) and a coalition of labor, environmental and citizen groups sent a petition to the Agency seeking a moratorium on the land application of biosolids. The CFS petition made many misleading statements, most notably that biosolids have been shown to cause harm to people, livestock, and the environment. In direct response to this petition, AMSA, the National League of Cities, the U.S .Conference of Mayors, the Water Environment Federation and other key municipal organizations sent EPA’s Acting Administrator Marianne Horinko a letter asking that the petition be denied for numerous reasons. In the municipal coalition’s response, AMSA and the other stakeholders reiterated the fact that thousands of local governments throughout the United States rely on land application of biosolids as an environmentally beneficial and economically sound method to manage sewage sludge. Also noted in the response letter was the fact that beneficial use of biosolids has undergone intensive scrutiny by EPA and the academic community and repeatedly has been deemed safe by objective scientific researchers. AMSA, however, does believe that further scientific study of biosolids is critical to continue to reassure the public that land-applied biosolids are safe. To this end, AMSA believes that EPA’s plan for addressing the recommendations from the July 2002 National Research Council report on land-applied biosolids and the Agency’s review of pollutants in biosolids, both due by January 2004, constitute key next steps toward reassuring the public of the safety and benefit of this important resource. AMSA will continue to work closely with EPA to ensure that the Part 503 program continues to reflect the best available science. The municipal coalition’s response letter can be found on AMSA’s website at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-10-24resp.pdf. For more information on this issue, please see AMSA’s Regulatory Alert at http://www.amsa-cleanwater.org/private/regalerts/ra03-12.cfm.

CBS’s Evening News with Dan Rather also ran a story last week delving into the issue of land-applied biosolids and their alleged effects on human health. AMSA and other stakeholders worked with CBS producers to ensure that the voice of publicly owned treatment works (POTWs) was heard, resulting in the story’s inclusion of an interview with William Toffey, Manager of the Philadelphia Water Department, Pa. — an AMSA member. Toffey was quoted as saying, “[w]e have not known of any situation where disease has been transmitted in biosolids.” A transcript of the story and the video itself can be found on CBS’s website at http://www.cbsnews.com/stories/2003/10/29/eveningnews/main580816.shtml.

AMSA Supports Agency Finding that Dioxins in Biosolids Pose No Need for Further Regulation
On October 17, 2003, EPA made its final determination regarding dioxin and dioxin-like compounds (dioxins) in land-applied biosolids, finding that neither numerical limitations nor requirements for management practices are currently needed to protect human health or the environment from dioxins in land-applied biosolids (published in the October 24, 2003 Federal Register (68 Fed. Reg. 61084)). Citing low predicted risks, even to the most highly exposed individuals, and declining concentrations of dioxins in biosolids, EPA concluded that the existing Part 503 regulations are adequately protective – a conclusion AMSA reached in its own study of dioxins in land-applied biosolids conducted in 2000/2001 and shared with EPA. EPA's final action was governed by an April 1, 2002 consent decree and settlement between AMSA, the Natural Resources Defense Council (NRDC), and citizen plaintiffs in a thirteen-year-old lawsuit over EPA’s Clean Water Act biosolids regulations, Gearhart v. Horinko (Gearhart). EPA originally was required to finalize the regulations by December 15, 2001 under the Gearhart Consent Decree. After extensive negotiations and various deadline extensions, the AMSA/NRDC/EPA agreement allowed EPA to take public comment on new dioxin data, and gave EPA an October 17, 2003 deadline to finalize the regulations. A copy of the notice and supporting materials can be found on EPA’s website at: http://www.epa.gov/waterscience/biosolids/.

On a related note, it was recently announced that EPA’s Agency-wide dioxin reassessment will undergo a full National Academy of Sciences (NAS) review before it is finalized. Because the land application rule is now final, it appears the NAS review will likely have no immediate impact on the Agency’s decision not to regulate dioxins in biosolids. For more information on this issue, please refer to AMSA’s Regulatory Alert found on the Association’s website at http://www.amsa-cleanwater.org/private/regalerts/ra03-11.cfm.

AMSA Tracks Pending Guidance Document on Levels of Radioactive Material in Biosolids
AMSA has learned that a pending guidance document from EPA and the U.S. Nuclear Regulatory Commission (NRC) concerning radioactive material in biosolids will be officially released in the Federal Register in mid-November for public comment. The Interagency Steering Committee on Radiation Standards (ISCORS), the governing body directing EPA and NRC’s efforts, met in late October to consider revisions to the guidance document. The guidance for POTWs will likely have some sort of guideline level of exposure based on biosolids concentrations, above which POTWs would be recommended to consult with the appropriate state agencies and perform further investigations.

In a related initiative, AMSA has been working on its own guidance intended to help POTWs understand the issues surrounding radioactive material in biosolids. Based on the draft guidance, AMSA will consider whether it is appropriate to release its guidance or if the Association should wait until the NRC/EPA guidance is finalized, which is not expected until spring 2004.

NPDES Permitting

AMSA Comments on EPA’s Draft Watershed Permitting Guidance
On October 23, 2003, AMSA submitted comments on the Agency’s draft Watershed-Based National Pollutant Discharge Elimination System (NPDES) Permitting Implementation Guidance. In its comments, AMSA expressed general support for the Agency’s efforts to tackle water quality issues on a watershed level and excitement to see how a more holistic approach may help achieve further water quality improvements. AMSA also noted several broad concerns that it hopes will be further addressed via EPA’s upcoming technical and implementation guidance documents, including the interaction between nonpoint source impacts and controls and watershed-based permits, and the vital importance of ensuring that permitting authorities view publicly owned treatment works (POTWs) as primary drivers of this initiative as it moves from the conceptual to the implementation phase.

Also, the Association’s comments illustrated its belief that there is great promise in the watershed concept for streamlining the permitting process, saving and sharing resources across a watershed, providing greater opportunities for trading and other market-based approaches, and countless other benefits, in addition to achieving measurable improvements in water quality. Finally, while generally supportive, AMSA and the POTW community are concerned that the Agency’s efforts will prove fruitless if state and local budgets do not allow for the proper implementation of the watershed permitting concept, concerns that were echoed by many state comments on the guidance. The draft guidance may be found on the Agency’s website at http://www.epa.gov/npdes/pubs/watershed_guidance_aug_03.pdf. AMSA’s comments are available on the Association’s website at http://www.amsa-cleanwater.org/advocacy/comments/2003-10-23cmts.pdf.

Pretreatment

AMSA Supports Removal of Molybdenum, Other Metals from CWT Effluent Guideline
On October 10, 2003, AMSA submitted comments to EPA on its proposed revisions to the Centralized Waste Treatment Effluent Limitations Guidelines (CWT ELG), which were published on September 10 (68 Fed. Reg. 53432). AMSA urged the Agency to delete molybdenum from the Organics subcategory and supported the Agency’s decision to remove selenium, antimony, and other metals, from various subcategories of the CWT ELG. In its comments, AMSA noted that molybdenum and other metals are not effectively removed by the biological treatment process, which is the process on which EPA erroneously based its limitations for the organic subcategory. The Association also cited the unnecessary financial burden that would be associated with monitoring and enforcing these limits for POTWs. AMSA supports EPA’s proposal to delete molybdenum from the Organics subcategory and has encouraged the Agency to take final action on the proposal as soon as possible and provide implementation guidance to the regulated community in light of the December 22, 2003, compliance deadline for the CWT ELG. To view the comments, please visit AMSA’s website at http://www.amsa-cleanwater.org/advocacy/comments/2003-10-10CWTComments.pdf. For more information or to provide additional comments, please contact AMSA’s Regulatory Analyst, Will Pettit, at 202/833-3280 or wpettit@amsa-cleanwater.org.

AMSA Comments in Support of EPA Plan not to Develop Pretreatment Standards in Meat Rule
On October 14, 2003, AMSA submitted comments on the Agency’s August 13 Notice of Data Availability (NODA) on the ELGs for the Meat and Poultry Products (MPP) Point Source Category (68 Fed. Reg. 48471), which indicated that wastes from MPP facilities are not causing widespread problems for the nation’s POTWs. MPP facilities discharge pollutants that are compatible with the POTW treatment processes that receive them. AMSA’s comments fully supported EPA’s decision not to promulgate categorical pretreatment standards for the MPP point source category. These comments noted that to require MPP facilities to install treatment to control conventional pollutants would not only duplicate treatment already provided by POTWs, but would also eliminate a vital source of surcharge revenue for many of the nation’s municipalities. AMSA’s comments reflected the fact that even the Agency’s supporting materials demonstrate that interference and pass-through caused by MPP facilities are rare occurrences that are best addressed at the local level. The final ELG for the MPP category must be published by December of this year. AMSA’s comments are available on the Association’s website at http://www.amsa-cleanwater.org/advocacy/comments/2003-10-14MCmts.pdf. For more information, please contact AMSA’s Regulatory Analyst, Will Pettit, at 202/833-3280 or wpettit@amsa-cleanwater.org.

AMSA Testifies Before House Subcommittee to Discuss Mercury Control Strategies
On October 8, 2003, AMSA testified before the House Government Reform Committee’s, Subcommittee on Wellness and Human Rights, to discuss AMSA’s initiatives on mercury with a focus on the issue of mercury in dental amalgam. AMSA member Norm LeBlanc, Chair of AMSA’s Water Quality Committee and Chief of Technical Services at Hampton Roads Sanitation District, Virginia Beach, Va., in his testimony, referred to a 2002 AMSA study, Mercury Source Control and Pollution Prevention Program Evaluation, that found that 35- 40% of mercury entering publicly owned treatment works (POTW) comes from dental offices – an estimate that is bolstered by American Dental Association’s (ADA) statistics, as well. LeBlanc noted that mercury leaving POTWs is a de minimis part of the national mercury problem and urged Congress to develop a national mercury strategy that looks holistically at mercury sources, from coal fired plants to abandoned mines. LeBlanc added that pollution control programs alone will not fully remove mercury entering POTWs because pretreatment programs apply only to commercial and industrial sources, not domestic mercury sources. As LeBlanc said, “Only a coordinated effort involving all levels of government, federal, state, and local, will be able to address the mercury problem as a whole and be able to ensure that the resources being applied to control mercury across the nation have a real impact on improving the environment and protecting public health.” LeBlanc also detailed AMSA’s Technical Action Fund project that will determine the effectiveness of amalgam separators in reducing the mercury loads to POTWs from dental offices. The hearing received significant media attention and these stories can be reviewed on AMSA’s Newsroom site at http://www.amsa-cleanwater.org/advocacy/news.cfm. To view AMSA’s testimony, please visit http://www.amsa-cleanwater.org/advocacy/testimony/10-08-03wtestimony.cfm.

Water Quality

AMSA Continues to Engage the Agency on its Watershed Rule, Broader Water Quality Initiative
On October 14, 2003, at AMSA’s Hot Topics Breakfast at WEFTEC in Los Angeles, Calif., Francoise Brasier, Deputy Chief of the Watershed Branch in EPA’s Office of Wetlands, Oceans, and Watersheds (OWOW) indicated that negotiations with several federal agencies continue on the Watershed Rule and that no official decision has been made regarding whether to move forward with the rule or instead pursue fixes to the current total maximum daily load program (TMDL) through guidance. Brasier also indicated that OWOW is working with the Office of Wastewater Management (OWM) on a new effort to coordinate Agency efforts on the linkages between water quality standards, TMDLs, and permits. AMSA will continue actively tracking any Agency developments on the Watershed Rule and OWM’s Water Quality Initiative.

Additionally, AMSA met with OWOW and OWM to discuss whether the POTW community would be willing to share with EPA and state regulators any ambient water monitoring data that POTWs may have collected. The Agency is interested in bolstering its national monitoring program and increasing the available data in the national STORET (short for STOrage and RETrieval) database, a repository for water quality, biological, and physical data used by state environmental agencies, EPA and other federal agencies, universities, private citizens, and many others. AMSA plans to discuss this further with the Water Quality Committee at its Winter Meeting in February.

As part of the Agency’s broad Watershed Initiative, conceived to encourage successful community-based approaches to restore, preserve, and protect the nation's watersheds, EPA is seeking nominations for competitive grants which would provide needed resources to those watershed organizations whose restoration plans are capable of achieving environmental benefit quickly. As AMSA members are eligible for these grants, the Association will alert the membership of this unique opportunity via a forthcoming Regulatory Alert. EPA is seeking nominations through January 9, 2004. This call for grant applications is available in the Federal Register at http://www.epa.gov/fedrgstr/EPA-WATER/2003/October/Day-09/w25401.htm.

Wet Weather

EPA Issues Blending Guidance, AMSA to Review and Comment
Earlier this week, EPA announced its blending policy which clarifies that the practice of blending is not a prohibited bypass and can be authorized in an NPDES permit if certain "principles" are followed. AMSA has obtained a copy of EPA's draft blending policy, which should be published in the Federal Register soon. Once published, the Agency will accept comments on the guidance until January 9, 2004. EPA describes the policy as both an interpretation of existing regulations as well as a draft guidance to implement that interpretation. Upon initial review by AMSA, it appears the basic principles are very similar to the December 2001 draft guidance. The new policy states that "peak wet weather discharges from POTWs that consist of effluent routed around biological or other advanced treatment units blended together with the effluent from the biological units (or from other advanced treatment units) prior to discharge would not be a prohibited bypass and could be authorized in an NPDES permit if all of the following principles were followed:"

Each of these principles is much more detailed in the guidance and EPA solicits comments on several different aspects of the policy. AMSA is preparing a more detailed Regulatory Alert on the guidance and will be soliciting comments from members in an effort to develop the Association's comments.

EPA Staffing

Utah Governor Leavitt Sworn In as New EPA Administrator
On October 28, 2003, Utah Governor Mike Leavitt was confirmed in the Senate by a vote of 88-8 to become head of the Environmental Protection Agency and was sworn in on November 6. In response to his confirmation, AMSA sent a letter congratulating Leavitt, making note of key clean water issues in which the Association is engaged, and requesting an opportunity to meet with Leavitt to share AMSA’s views on water quality issues. AMSA’s letter can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/2003-10-29leavittltr.pdf.