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AMSA July 2002 Regulatory Update

Member Pipeline - Regulatory - September 2002 Update

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To: Members, Affiliates,
Regulatory Policy Committee, Legal Affairs Committee
From: National Office
Date: October 4, 2002

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AMSA’s National Office is pleased to provide you with the September 2002 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to October 4, 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 Upcoming Meetings
AMSA’s fall meeting schedule will offer the members many opportunities to get caught up on the most critical regulatory and legal developments in our field. Please mark your calendar for the following key events:

AMSA Brings Urban Focus to World Watershed Summit
The National Office is working collaboratively with the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA) to help plan its World Watershed Summit, which is part of ASIWPCA’s Year of Clean Water initiative, commemorating the 30th anniversary of the Clean Water Act. The Summit, a symposium examining effective watershed management strategies, will take place October 31 - November 1 in Washington, DC at the J.W. Marriott Hotel. AMSA’s Board of Directors in July voted in favor of contributing $5,000 to the Year of Clean Water effort. In preparation for the Summit, AMSA is helping to put together panels which feature urban watershed management approaches and which highlight noteworthy municipal accomplishments. For more information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org or access the Summit’s web site at http://www.yearofcleanwater.org/.

 

Biosolids

Inspector General’s Report Lists Biosolids as Key Management Challenge
On September 6, the U.S. Environmental Protection Agency’s (EPA) Office of the Inspector General (OIG) issued a report listing what the OIG considers to be the Agency’s "Key Management Challenges." The report can be viewed at http://www.epa.gov/oigearth/ereading_room/topchallenges2002.pdf. Among the challenges listed in the annual OIG report was biosolids management, which appeared on the report’s second-tier (less severe) challenge list. The report makes no recommendations about solving these management challenges but is intended to "flag" those program areas where more Agency attention is needed. Three specific biosolids management concerns were raised in the report (see page 14):

The report attributed the Agency’s failure to conduct basic risk research on biosolids to EPA’s assessment that biosolids management is a low-risk activity. The OIG noted that EPA agreed in 1993 to conduct comprehensive research on sludge disposal, but has not done so. The Inspector General also criticized EPA for diverting compliance and enforcement resources away from the program. Between 2000 and 2002, the report found that EPA reduced the staff for enforcement of biosolids regulations by 44 percent.

The criticisms of the biosolids program in the new management challenges report are consistent with previous OIG reports and observations made in a recently released National Research Council report on the Part 503 standards. AMSA will remain active on these issues as the Agency works to respond. For more information, contact Chris Hornback at 202/833-9106 chornback@amsa-cleanwater.org.

AMSA Comments on EPA’s NODA on the Part 503 Standards for Land-Applied Biosolids
On September 10, AMSA filed comments on the EPA’s June 12, 2002, Notice of Data Availability (NODA) on the Part 503 standards for land applied biosolids (67 Fed. Reg. 40554; See Regulatory Alert 02-14). The NODA summarizes new data on the levels of dioxin in biosolids and EPA’s revised risk assessment for estimating the risks from dioxin and dioxin-like compounds associated with the land application of biosolids. Using the new dioxin data and revised risk assessment, EPA estimates that the lifetime cancer risk to its modeled (highly-exposed) population is within the Agency’s range of acceptable risks. Furthermore, EPA’s revised risk assessment shows no measurable effect on risk if all biosolids are required to meet the Agency’s 1999 proposed limit of 300 parts per trillion (ppt) toxic equivalents (TEQ).

AMSA believes that, given the information presented in the NODA, including the current data on dioxins in biosolids and the results of the Agency’s new probabilistic risk assessment, a “no action” decision is warranted. The NODA makes some key observations regarding EPA’s new information that support a “no action” decision:

In furtherance of AMSA’s continued belief that EPA’s decisions regarding dioxins in land applied biosolids must be based on sound science, the Association recommended that the Agency strengthen the underlying foundation of the information presented in the NODA by addressing a number of assumptions made in the new probabilistic risk assessment. For more information contact Chris Hornback, AMSA at 202/833-9106 chornback@amsa-cleanwater.org. The NODA is available on EPA’s web site at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/June/Day-12/w14761.pdf. AMSA’s comments are available on our web site at: http://www.amsa-cleanwater.org/private/legreg/outreach/09-2002AMSACommentsW-99-18.pdf.

 

Pretreatment

EPA Issues 2002-2003 Plan for Effluent Guidelines, Draft Strategy Nearly Complete
EPA published its 2002-2003 Effluent Limitations Guidelines (ELG) Plan on August 27, 2002 (67 Fed. Reg. 55012). The Plan includes the schedule for six guidelines in various stages of development. The draft plan had been criticized by some environmental activists since it did not identify any industries for the development of new effluent guidelines. The Agency proposed the plan on June 18, 2002 (67 Fed. Reg. 41417). AMSA’s comments on the draft plan are available at: http://www.amsa-cleanwater.org/private/legreg/outreach/08-20-02effguidecommts.pdf. AMSA did not have any comments on the proposed guideline schedule, but expressed an interest in participating in the development of what the Agency is calling its “National Strategy for ELGs”. EPA is apparently close to completing a draft of the strategy that will guide the ELG program into the future. AMSA discussed the content of the strategy with EPA at WEFTEC and will continue to meet with the Agency as it works to finalize the strategy. A copy of the 2002-2003 Plan can be obtained at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&docid=fr27au02-47.pdf. For further information, contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Meets with EPA on Electronic Reporting Rule
On September 17, AMSA met with officials from EPA’s Office of Environmental Information to hear the latest on the Agency’s proposed rulemaking for electronic recordkeeping and reporting. EPA is currently reevaluating the Cross Media Electronic Reporting & Recordkeeping (CROMERR) rule, and has already decided to divide the rule into two components, one for recordkeeping and one for reporting. Since the recordkeeping provisions were by far the most contentious, EPA will first move forward to finalize the reporting elements. EPA is currently targeting Spring of 2003 for a final rule on the reporting elements.

EPA is seeking to establish standards for electronic report submission that would ensure the integrity of the information and ensure that any reports submitted electronically were as reliable and defensible as paper reports. The Agency is proposing to require that all regulatory authorities which receive reports electronically (i.e., via the Internet, not diskette) would be required to gain approval from the appropriate state or EPA Approval Authority. This means that POTWs with approved pretreatment programs would have to submit an application for approval to state or Region before they could utilize an electronic reporting system for receiving information from their industrial users. The original proposal detailed very prescriptive requirements for these reporting systems. AMSA members that are considering electronic report submission were concerned that the prescriptive nature of these requirements could hamper their ability to use existing systems. EPA has made substantial changes to the original proposal and will most likely finalize provisions that are more performance based, rather than specifying specific technologies and controls.

AMSA will continue its open dialogue with the Agency to ensure that POTW concerns are addressed. If your agency is considering electronic reporting for its industrial users, or for further information, please contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.

AMSA Provides Testimony on EPA’s Proposed Changes to Performance Track
On September 27, Guy Aydlett, Director of Water Quality for the Hampton Roads Sanitation District and Chair of AMSA's Pretreatment and Hazardous Waste Committee, testified on behalf of AMSA during a public hearing on proposed changes to EPA's National Environmental Performance Track Program. AMSA voiced strong opposition to the proposed use of elements from the 1999 Pretreatment Streamlining Proposal (64 Fed. Reg. 39563) as incentives under the Performance Track Program. The testimony noted that while EPA had originally proposed the streamlining measures for all POTWs, only Performance Track facilities would be able to benefit from these provisions if the changes are finalized. The August 13 Federal Register notice (67 Fed. Reg. 52674) proposes four incentives designed to reduce overall burden to POTWs participating in the program. The four provisions provide:

Some of the proposed incentives are identical to what EPA proposed in the 1999 Pretreatment Streamlining Rule. Following AMSA’s testimony, officials with EPA’s Office of Policy, Economics, and Innovation asked AMSA to provide examples of incentives the POTW community would like to see incorporated into the Performance Track Program as potential alternatives to what EPA has proposed.

AMSA will send a Regulatory Alert to the membership in the coming weeks to seek suggestions for potential incentives. For more information on the proposal, please contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org. Additional information on the National Environmental Performance Track program can be obtained at: http://www.epa.gov/performancetrack/. The Federal Register notice can be obtained at: http://www.epa.gov/fedrgstr/EPA-WATER/2002/August/Day-13/w20347.htm.

 

Water Quality

AMSA Tracks Progress of Watershed Rule
AMSA understands that EPA is sticking to its August decision to propose a Watershed Rule (see http://www.amsa-cleanwater.org/private/faxalerts/080902.cfm and EPA letter at http://www.amsa-cleanwater.org/private/legreg/outreach/090602epaletter.pdf) despite continued activist opposition and a September 20 letter from 38 House Democrats counseling the Agency to not propose the regulations. The House letter, spearheaded by Rep. Frank Pallone (D-NJ), urges EPA to “focus its efforts on implementing the existing program”, rather than “rewrite and redesign these regulations to delay cleanups further.” The letter further notes that to “propose any regulatory or other changes that would cripple this vitally important water clean up program ... would violate the promise of the 1972 Clean Water Act that every community in the country will have clean water.” Despite this pressure, EPA is still indicating that the rule will be proposed as previously promised. Internal EPA review is essentially complete and the Agency hopes to get the rule to OMB on or around October 21. Among the issues that are still being debated internally are the provisions for modifying allocations once a TMDL has been approved, the objection authority for expired permits, and whether to include non-point source allocations in the approved TMDL. EPA has not yet indicated the revised schedule for the proposal having already missed its “late summer” prediction from earlier in 2002.

AMSA has taken a somewhat neutral position on the proposed Watershed Rule thus far. On balance, the Association has supported EPA’s issuance of a proposed rule for comment, and has sharply opposed the activist community’s stance that the existing regulations are satisfactory (see AMSA’s August 7 letter at http://www.amsa-cleanwater.org/private/legreg/outreach/080702whitmanletter.pdf). However, because the Agency has not yet issued or made public its proposed rule language, AMSA has not taken a position on any of the specific changes. Only very general observations at this point can be made. For instance, the Association believes that changes which will likely be made to the listing process that distinguish between waters for which data is insufficient to determine its attainment status and those waters for which TMDLs are required are positive developments that should improve the state listing process. On the other hand, AMSA will be interested to assess how the proposed revisions to the load allocation process for nonpoint sources (NPS) may limit the state’s oversight over NPS requirements. AMSA will continue to track the progress of the Watershed Rule, and will conduct a thorough review of the proposal through the Water Quality and Legal Affairs Committees. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.

AMSA Requests Member Feedback on Key TMDL Listing & Assessment Guidance
EPA in August 2002 published the first edition of its long-anticipated Consolidated Assessment and Listing Methodology (CALM). The document can be downloaded at http://www.epa.gov/owow/monitoring/calm.html. Originally expected to be released in 2001, the CALM guidance was delayed due to Agency concerns regarding major aspects of the document, and even now has been issued with three chapters either still under development or saved as placeholders for a later version of the guidance. The purpose of CALM is to provide states with a framework for improving the methods used to determine the status of attainment for waters within their jurisdiction and to identify those waters that are impaired. The document also is intended to assist states in developing their integrated reports of state waters and their required assessment and listing methodologies in accordance with EPA’s 2002 Integrated Water Quality Monitoring and Assessment Report Guidance (see http://www.amsa-cleanwater.org/private/regalerts/ra01-21.cfm). The states are required to submit their next list of impaired waters by October 1.

During the initial phases of CALM, AMSA met with lead EPA staff and participated in each of several development meetings in the fall of 2000 to convey the issues and concerns of POTWs. The National Office submitted comments to the Agency on an earlier draft outline of CALM in December 2000, a copy of which can be accessed via the AMSA web site at http://www.amsa-cleanwater.org/private/legreg/outreach/CALM12-14-00.pdf. In March 2002, AMSA, in concert with the Federal Water Quality Coalition and the American Farm Bureau, released its own set of recommendations on the listing and assessment process. The document can be downloaded at http://www.amsa-cleanwater.org/advocacy/wqmar/ on the AMSA web site.

For a detailed summary of this first edition of CALM, please refer to AMSA’s Regulatory Alert 02-18 (see http://www.amsa-cleanwater.org/private/regalerts/ra02-18.cfm). The Agency is welcoming comments from all interested parties, although no deadline for submittal was specified. Specific comments are encouraged on how the document may be improved and on case studies and examples where methods are working or need to be modified. It is EPA’s intent to revise CALM as needed in the future. AMSA encourages its members to review the guidance and submit comments or specific case studies by Thursday, October 10 to AMSA c/o Will Pettit at wpettit@amsa-cleanwater.org or 202/833-3280. AMSA will continue to track the progress of CALM, and submit comments based on member feedback.

AMSA Participates in Public Meeting on EPA’s Data Quality Plan
On September 20, AMSA attended a public meeting on EPA’s draft document, Assessment Factors for Evaluating the Quality of Information from External Sources (Assessment Factors), released for external review on September 6. The Assessment Factors document can be found at http://www.epa.gov/oei/qualityguidelines/af_assessdraft.pdf. The purpose of the meeting was to obtain public input on factors for assessing the quality of information voluntarily provided by external sources to the Agency or obtained by EPA from external sources for specific purposes. EPA developed this document as part of its larger draft Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency (Information Quality Guidelines). The Information Quality Guidelines, found at http://www.epa.gov/oei/qualityguidelines/iqg-background1.htm, were developed pursuant to the Office of Management and Budget’s (OMB) Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (67 Fed. Reg. 8452).

EPA released its final Information Quality Guidelines on October 4. The document may be found on EPA’s web site at http://www.epa.gov/oei/qualityguidelines/EPA-OEI-IQG-FINAL-10.2.pdf. The comment period on the draft Assessment Factors is open until September 30, but the Agency intends for this document to be under constant revision and open to stakeholder input. After release of the Assessment Factors, EPA plans to conduct a workshop in conjunction with the National Research Council in late Fall 2002 to provide more precision in the document. The bulk of the public comments presented at the meeting concentrated on the:

AMSA will continue to track this issue and will comment when necessary. For more information please contact Will Pettit, AMSA, at 202/833-3280 or wpettit@amsa-cleanwater.org.

In a related matter, on September 5, OMB sent EPA recommended revisions to the Agency’s Information Quality Guidelines. The comments suggest giving groups outside the government the opportunity to formally petition and challenge the quality of information compiled by EPA for use in policy decisions. OMB argues that EPA is required to respond to such petitions if the petitioners demonstrate a “reasonable likelihood of suffering actual harm from the agency’s dissemination if the agency does not resolve the complaint prior to the final agency action of information product.”

AMSA Tracks Inspector General Report Citing Problems with Environmental Labs, Data Quality
Among the top management challenges identified in the OIG’s September 6 Key Management Challenges report (see related summary under Biosolids) are data reliability and laboratory manipulation. The report can be viewed at http://www.epa.gov/oigearth/ereading_room/topchallenges2002.pdf. The Inspector General found that recent audits indicate systems used by EPA’s Enforcement, Superfund, and Water programs have inconsistent, incomplete, and obsolete data. The OIG report also faulted the Agency with failing to follow through on a 1998 Inspector General recommendation to establish data quality standards, and concluded that this effort must proceed in a more timely and structured manner. The report also cited a “disturbing trend” in the number of environmental laboratories that are providing misleading and fraudulent data to the states for monitoring the nation’s public water supplies and implementing the national pollutant discharge elimination system (NPDES) program. Ongoing lab fraud investigations in 2002 indicated that despite Agency efforts to ensure improved data quality, manipulated data continues to be generated and supplied to EPA. The Inspector General noted that “EPA must continue to assess and improve its controls over laboratory data quality,” until the Agency can measure the success of new fraud detection, awareness and ethics training, and guidance addressing data quality. For more information, contact Will Pettit at wpettit@amsa-cleanwater.org or 202/833-3280.

State of the Nation’s Ecosystems Report Released, EPA Counterpart to Follow
On September 24, The John Heinz III Center for Science, Economics and the Environment released a report entitled The State of the Nation’s Ecosystems: Measuring the Lands, Waters, and Living Resources of the United States (Heinz Report). A summary of the report can be found at http://www.heinzctr.org/ecosystems. EPA Administrator Whitman has indicated that the Heinz Report, combined with the soon to be released Agency report entitled State of the Environment Report (information found at http://www.epa.gov/indicators) will be used to gauge how much progress is being made in environmental protection.

The chief objective of the Heinz Report is to begin to build consensus around a set of environmental indicators that would be accepted, much like national economic measures such as the gross domestic product figures. Commissioned five years ago by the Clinton administration, the report describes 103 "indicators," items such as the contamination of streams by chemicals and nitrogen, which already are or could be measured. Some of the related water issues covered in the Heinz Report include phosphorus in lakes, reservoirs, and large rivers, changing stream flows, and water clarity in lakes. The State of the Environment Report, expected to be released in November 2002, will describe current national environmental conditions and trends using existing data and indicators, identify data gaps and research needs, and discuss the challenges government and other interests face in filling those gaps. The State of the Environment Report will focus on five theme areas: human health, ecological conditions, clean air, pure water, and better protected land. The report will explore trends in diseases, human exposure to environmental pollutants, and diseases thought to be related to environmental pollution. AMSA will continue to track these documents and provide feedback to the Agency as necessary. For more information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA Tracks EPA’s Release of the 2000 National Water Quality Inventory
On September 30, EPA released its 2000 National Water Quality Inventory, a biennial summary of water quality reports submitted by all 50 states, as required under part 305(b) of the Clean Water Act. The state reports assessed 19% of the nation’s total river and stream miles, 43% of its total lake, pond, and reservoir acres, 36% of its estuarine square miles, and 92% of Great Lakes shoreline miles. The report, available at http://www.epa.gov/305b/2000report/, is broken down by chapter according to the above categories of waterbodies. EPA found that the percentage of assessed stream and estuary waters found to be impaired has increased from the last report in 1998, although it is likely that this difference is due to changes in assessment approaches rather than actual water quality changes. The highlights of the report include:

Rivers and Streams
For the 19% of assessed river and stream miles (or 699,946 miles), 61% were rated as “good” or meeting national water quality standards, and 39% were listed as “impaired.” Pathogens and siltation were cited as leading causes of impairment in assessed stream miles. The major sources of these pollutants included agriculture runoff and hydrologic modification.

Lakes and Reservoirs
States assessed 43% (or 17.3 million acres) of the nation’s lakes and reservoirs, finding 55% of them in “good” condition and 45% of them as “impaired.” Nutrients, metals (primarily mercury), and siltation were the top three causes of impairment. The major sources of these stressors again included runoff from agricultural land and hydrologic modifications, as well as runoff from urban areas and storm sewer discharges.

Coastal Resources
Of the 36% of the nations estuarine square miles assessed, 49% were found to achieve water quality standards, while 51% were considered “impaired.” The main pollutants found in the impaired waters were metals and pesticides. Metals (primarily mercury), pesticides, and oxygen-demanding substances were reported as the top three causes of impairment. Major sources included municipal sewage treatment plants, runoff from urban areas and storm sewer discharges, and industrial discharges.

For more information, please contact Chris Hornback at 202/833-9106 or chornback@amsa-cleanwater.org.

 

Wet Weather

AMSA Notes Progress Made in SSO Rule Proposal
AMSA has learned that EPA staff has completed draft revisions to portions of the SSO rule proposal, but that the internal Agency review process is unlikely to be completed by the initial October deadline for submitting to OMB. The National Office also understands that the preamble discussion in the proposal has been broadened, largely in response to AMSA’s recommendation, to address a wider range of policy issues relating to SSO control, such as emergency overflow structures and peak excess flow treatment facilities (PEFTFs). AMSA had previously recommended that the Agency incorporate these issues into the rulemaking instead of proceeding with the development of separate guidance covering these areas (see EPA’s December 21, 2001 wet weather guidance at http://www.amsa-cleanwater.org/private/regalerts/ra02-01a.pdf).

AMSA has been extremely active in encouraging EPA to move forward with the SSO rule, including several meetings with Agency officials and an August 20 letter commending the Office of Water for announcing its intention to move forward with the rule and to propose a single, comprehensive regulatory package. AMSA’s letter is posted on the web site at http://www.amsa-cleanwater.org/private/legreg/outreach/08-02Mehanletter.PDF. The National Office plans to meet in early October with the Office of Policy, Economics & Innovation (OPEI), one of the key EPA offices which review proposed rules before they are released to OMB, to elaborate on AMSA’s interest in the SSO rule and specific ideas on achievable control standards. For further information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

SSO Workgroup Conducts Survey of Member Peak Flow Capacity Projects
AMSA expects that the SSO rule will require, among other things, that municipalities evaluate their collection systems to identify any areas of inadequate capacity which are causing SSOs. EPA has admitted, however, that it does not have sufficient information on which to base a regulatory determination of “adequate capacity.” AMSA is concerned that, without some direction on appropriate engineering practices, the regulatory authorities will be able to impose unreasonable and impractical capacity requirements on collection system operators, and enforcement authorities will be able to bring legal action for truly unavoidable overflows. To address these concerns, AMSA’s Wet Weather Committee and SSO Workgroup are in the early stages of developing a checklist that incorporates peak flow capacity factors that should be considered in collection system construction and/or rehabilitation projects.

As a first step, the Workgroup is conducting a mini-survey of AMSA member collection system contacts to determine what types of sewer rehabilitation or extension projects have been completed or are planned, and the specific factors which are considered for sizing new sewers to handle peak flows. Based on information gathered from this survey, it is the Workgroup’s intent to identify the key steps in the capacity decision making process, as well as the range of site-specific variables that should be considered when making pipe-sizing decisions. AMSA then plans to present to EPA general guidelines that will define the engineering process for sewer design with the expectation that Agency authorities utilize these guidelines in their evaluation of separate sanitary sewer collection systems. For more information, contact Greg Schaner at 202/296-9836 or gschaner@amsa-cleanwater.org.

AMSA’s CSO Recommendations Mirrored in EPA’s IG Report
EPA’s OIG released in late August its evaluation report of the combined sewer overflow (CSO) program, Wastewater Management: Controlling and Abating CSOs. The OIG report, which identifies implementation barriers to CSO programs and suggests actions to remove these barriers, includes recommendations which echo several of the key findings in AMSA’s February 2002 Communities at Work ... The National Response to Combined Sewer Overflows. Taking a cue from AMSA’s report, the OIG document identifies insufficient funding as a significant barrier to CSO abatement and recommends, among other things, the use of a watershed approach to address water quality. National office staff met with OIG officials during the research phase of the report to provide feedback on the municipal perspective. AMSA’s CSO report is available on AMSA’s web site at http://www.amsa-cleanwater.org/private/regalerts/ra02-04.cfm. The OIG’s CSO report can be downloaded at http://www.epa.gov/oigearth/ereading_room/csofinal.pdf.

 

Miscellaneous

EPA Withdraws Rule to Increase Environmental Penalties by 13.6 Percent
On August 19, EPA withdrew a rule that would have increased penalties for civil violations of environmental laws by 13.6 percent. The increase was intended to respond to inflation, a result of the Debt Collection Improvement Act, which requires federal agencies to adjust civil penalties every four years to maintain their deterrent effect. EPA announced the increase in the Federal Register on June 18 (67 Fed. Reg. 41343), including a notice that it would withdraw the rule if an adverse comment was received by July 18. The Agency received one adverse comment and therefore withdrew the rule.