AMSA Regulatory Update October 2004

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The Association of Metropolitan Sewerage Agencies (AMSA) is pleased to provide you with the October 2004 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to November 1, 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

National Pretreatment Coordinators Workshop Sees Continued Success in Norfolk
The 2004 National Pretreatment Coordinators Workshop held in Norfolk, Va., last week continued its tradition as the preeminent national forum for pretreatment professionals, U.S. Environmental Protection Agency (EPA or Agency) and state representatives to discuss current issues facing pretreatment programs. Some of the “hot topics” that received attention in Norfolk were the Pretreatment Streamlining Rule, EPA’s Local Limits Guidance and alternatives to numeric standards, emerging pollutants, pretreatment security challenges, pollution prevention, airport waste issues, and, more broadly, the effluent guidelines program as a whole. Jim Hanlon, Director of EPA’s Office of Wastewater Management provided remarks at the workshop, noting that the National Pretreatment Program continues to be the most successful environmental program under the Clean Water Act. Hanlon also mentioned that EPA looks forward to continuing its support of the National Pretreatment Coordinators Workshop. PowerPoint presentations from the Workshop are available on AMSA’s website (http://www.amsa-cleanwater.org/meetings/04pret/ppt/). If you have any questions, please contact AMSA’s Will Pettit at 202/833-3280 or wpettit@amsa-cleanwater.org. AMSA thanks all those in attendance in Norfolk!

AMSA Successfully Enters Key Effluent Guidelines Case
On October 14, the U.S. District Court for the Northern District of California granted AMSA’s participation in Our Children’s Earth Foundation (OCF) v. EPA. The plaintiffs in this case allege that EPA has failed to review its Clean Water Act effluent guidelines every five years and to evaluate whether technological advances or changed economic circumstances have made it feasible to make existing guidelines more stringent. Despite OCF’s objections to AMSA’s participation in the case, the Association argued successfully that member publicly owned treatment works implement the effluent guidelines program, making the Association’s involvement vital.

Most activity in the case is on hold until December 9, while the court awaits a jurisdictional ruling – sought by OCF – from the U.S. Court of Appeals for the Ninth Circuit on whether the case should proceed before the district court or before the appeals court. AMSA will report on further developments in the case as they occur. For more information on this case, please visit AMSA’s Litigation Tracker (http://www.amsa-cleanwater.org/private/littrack/#childrenef) or contact AMSA’s General Counsel, Alexandra Dunn, at 202/533-1803 or adunn@amsa-cleanwater.org.

Court Hears AMSA Oral Testimony in Whole Effluent Toxicity Case
On October 15, AMSA and other groups challenging EPA’s final chronic whole effluent toxicity (WET) test methods delivered oral arguments in front of the U.S. Court of Appeals for the District of Columbia Circuit. To AMSA’s benefit, the panel of three judges expressed concern that EPA could not demonstrate that it tested the methods for reliability at low levels of toxicity – and that most WET permit limits are in fact set at such low levels. EPA’s intention to use the methods despite clear evidence that the tests can yield many false “positive” toxic results also troubled the panel. AMSA requested that the court withdraw the chronic WET methods from the federal regulations. EPA defended its actions, noting that the methods are no less reliable than the Agency’s chemical tests and that there are many safeguards in the methods that provide dischargers with the “benefit of the doubt.” A written decision from the court is expected in early 2005.

While moving forward with its challenge of the WET methods themselves, AMSA has also pursued implementation “fixes” that might alleviate some of the inherent problems with the methods when used for compliance determinations or to establish permit limits. EPA’s WET implementation Guidance, which is expected to be released in the next month or so, will likely address some of these issues. AMSA has met with EPA several times to encourage them to provide clarifications on several key issues in the guidance. AMSA will alert the membership once the court has decided the case or of any other regulatory developments.

Conference and Workshops

AMSA Members Discuss Hot Topics with EPA Officials over Breakfast at WEFTEC
AMSA members gathered on October 5 in New Orleans to hear from key EPA officials at the Association’s annual Hot Topics Breakfast during WEFTEC 2004. The nearly 50 AMSA member agency representatives in attendance heard updates on several critical wastewater issues from Jim Hanlon, Director of EPA’s Office of Wastewater Management (OWM), along with several members of his staff, and Geoff Grubbs, Director of EPA’s Office of Science and Technology. Hanlon noted that his office had almost completed its review of the comments received on EPA’s proposed blending policy and that options for finalizing the guidance would be presented to the Office of Water’s Acting Assistant Administrator Benjamin Grumbles soon. Hanlon added that OWM’s goal is to issue a final guidance by the end of the calendar year. Hanlon also indicated that a draft of the Whole Effluent Toxicity Implementation Guidance would be released for comment in six to eight weeks. Grubbs indicated that his office was close to finalizing bacteria criteria for several coastal states, an initiative that AMSA has closely followed. Grubbs expressed that EPA was carefully reviewing the issue of criteria exceedance based on a single sample maximum value, which was the focus of AMSA’s comments on the proposed bacteria criteria. Other issues that were discussed included use attainability analyses and watershed permitting and a more detailed discussion will be available in the upcoming Clean Water News. AMSA thanks all those that attended the Hot Topics Breakfast!

Water Quality

AMSA Awaits Court Decision on Intervention in Precedent-Setting Nutrient Permitting Case
On November 2, the Richmond, Va. Circuit Court will hear procedural motions in Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock). 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). In addition, Onancock is seeking a transfer of the case from the Richmond court to a location closer to home. Following the November 2 hearing and action on the Onancock motion for transfer, AMSA and the Virginia Association of Municipal Wastewater Agencies (VAMWA) expect the court to rule on our September motion to intervene in the case. AMSA plans to raise several issues as intervenors, including 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. AMSA is particularly interested in the outcome of this case because it could set national precedent for nutrient permitting issues. 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 Interviewed as Part of Stakeholder Process for Detection and Quantitation Procedures
On October 20, AMSA member agency representatives and staff were interviewed as part of an ongoing EPA evaluation of whether consensus can be reached on the development of detection and quantitation limits and uses of those limits in Clean Water Act programs^[1]. As part of the interview, AMSA was able to voice its concerns with EPA’s current approach for developing detection and quantitation levels and how the Association envisions a formal stakeholder process should be structured to reach consensus.

AMSA has consistently maintained, including in an August 15, 2003 coalition letter (http://www.amsa-cleanwater.org/private/legreg/outreach/2003-08-15mdl.pdf) sent to EPA, that the current method detection limit/minimum level of quantitation (MDL/ML) approach routinely gives erroneous estimates of the sensitivity of laboratory measurements. AMSA is working with a broad stakeholder group to further develop the concepts outlined in the August 2003 coalition letter. The subject of the August 2003 coalition letter, EPA’s March 2003 proposed MDL and ML procedures, will likely be withdrawn in order to consider input from stakeholders. Interviews of industry, laboratory, state, and municipal representatives will continue for the next few weeks after which EPA will be presented with recommendations regarding the new stakeholder process. EPA announced the evaluation and potential stakeholder process in a September 15 Federal Register notice that contains some additional details about the goals of the process (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2004_register&docid=fr15se04-17.pdf).

AMSA Participates in First of TAF-Supported Workshops on TMDL Adaptive Implementation
In February 2003, AMSA’s Board of Directors approved a $25,000 Targeted Action Fund (TAF) contribution to a project to conduct workshops and develop a monograph on the interpretation, analytics, and execution of adaptive implementation for total maximum daily loads (TMDLs). Dr. Ken Reckhow, Chair, Environmental Sciences and Policy at Duke University, who served as the chair of the National Research Council’s Committee to Assess the Scientific Basis of the TMDL Approach to Water Pollution Reduction, and oversaw the issuance of the corresponding NRC report, Assessing the TMDL Approach to Water Quality Management, is organizing the project. AMSA participated in the first of a series of three workshops October 25 – 26, 2004 in Durham, N.C. Given the uncertainty often associated with TMDL implementation, especially where nonpoint sources are a large component of the pollutant load, AMSA believes the concept of a continuous feedback loop of data and information has excellent potential for improving water quality. Subsequent workshops will be held in January 2005 in Irvine, Calif., and in April 2005 in Durham, N.C. AMSA will notify its membership of progress made in this important TAF initiative. The status of all current TAF projects can be found on AMSA’s website (http://www.amsa-cleanwater.org/advocacy/taf.cfm).

Wet Weather

AMSA, CSO Partnership Hold Successful Use Attainability Analysis Workshop
AMSA and the CSO Partnership, in cooperation with EPA, held a workshop in Chicago, Ill., October 18 – 19, entitled, “Cracking the UAA Code,” to examine the use attainability analysis (UAA) process, especially as it relates to Combined Sewer Overflow (CSO)-dominated waters. Numerous officials from AMSA, the CSO Partnership, EPA, and consultants were on hand for a full two-day program to delve into the rather complicated, often misunderstood UAA process. Topics that were discussed include: water quality assessments and the building blocks of a UAA; numerous community perspectives on key wet weather water quality issues; EPA perspectives on UAA issues; review of existing UAA workplans and approaches; and finally, a model UAA approach to “cracking the code.” Looking forward, AMSA is working on a TAF project to create a guidance document for municipalities on the UAA process and is working with the Water Environment Research Foundation to hold future UAA workshops. AMSA thanks the CSO Partnership, EPA and all the attendees for making the UAA workshop a success!

^[1] EPA approves analytical methods (i.e., test procedures) used for monitoring and reporting chemical pollutants under the Clean Water Act. EPA's analytical methods specify detection limits to determine if a pollutant is present. Quantitation limits describe the concentration of a pollutant that can be measured with a known level of confidence. These values are often used as reporting and compliance limits by the states, tribes and EPA Regions that administer and enforce permit limits on direct discharges into surface waters. These values are also often used by states and localities in administering and enforcing pretreatment programs for indirect discharges.