Member Pipeline - Regulatory - Update (September 2001)
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To: Members, Affiliates, Regulatory Policy Committee, Legal Affairs Committee From: National Office Date: October 4, 2001 The National Office is pleased to provide you with the Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to September 30, 2001. A Regulatory Digest of activities currently tracked by AMSA also is attached. If you have any questions or comments, please contact the AMSA National Office, 202/833-AMSA or info@amsa-cleanwater.org.
Keep current between issues of AMSA's Regulatory Update! Visit our web site at: www.amsa-cleanwater.org. The Regulatory section of the site provides user access to AMSA's key regulatory issues and activities and is updated as events take place.
Security Issues
AMSA Mobilizes to Address POTW Security Issues
AMSA's Board of Directors has taken strong action to underscore the critical role AMSA will play in ensuring the safety and security of our nation's wastewater utilities. Following the September 11 terrorist attacks, the Board formed a Wastewater Infrastructure Security Task Force, which will be chaired by Board member John C. Farnan, General Superintendent of the Metropolitan Water Reclamation District of Greater Chicago. The Task Force is charged with developing and implementing initiatives related to the security of public wastewater agencies nationwide. It will be comprised of AMSA members with practical knowledge of the complex issues surrounding wastewater infrastructure security, and will work in cooperation with local and federal authorities.AMSA also will direct $50,000 from the Technical Action Fund (TAF) to retain contractors with security expertise to work with AMSA to develop recommendations and tools to assist member agencies in protecting the nation's wastewater infrastructure. AMSA is also pursuing funds from the Congressional appropriations process, and directly from EPA, to conduct this and other wastewater infrastructure security projects.
AMSA has been asked to disseminate to its members FBI advisories relating to wastewater security as part of a developing Information and Sharing Analysis Center (ISAC). AMSA joins the Association of Metropolitan Water Agencies (AMWA) in the ISAC to ensure that both the water and wastewater sectors receive important information expeditiously. The ISAC eventually will be established as an independent entity. Until that time, AMSA will work with AMWA and other associations to ensure dissemination of important advisories to utilities throughout the country. Please note that these confidential advisories will be sent to AMSA main member contacts via e-mail only! Please also be aware that such e-mails can be sent on weekends and, therefore, AMSA strongly urges each member agency to set up a system to review potential e-mails on weekends. A fact sheet on the water and wastewater ISAC is available on AMSA's web site at http://www.amsa-cleanwater.org/private/security/. AMSA is building a new section of our web site to provide additional information and resources on security to our members.
AMSA has written letters to both U.S. Environmental Protection Agency (EPA) Administrator Christine Todd Whitman, Joe Allbaugh, Director of the Federal Emergency Management Agency, and Ron Dick, Director of the Federal Bureau of Investigation's National Infrastructure Protection Center (NIPC), volunteering AMSA's help in any effort related to ensuring the security of publicly owned treatment works. AMSA will send similar letters to the relevant Congressional committees working on this issue. AMSA has already met with members of NIPC and will continue to work with other federal agencies during this effort to secure our nation's infrastructure. AMSA's letters to key federal agencies are available at http://www.amsa-cleanwater.org/private/legreg/outreach/9-20-01securityletters.pdf.
Upcoming Meetings
Get Together with AMSA at WEFTEC
WEFTEC 2001 is quickly approaching! This year's exposition will be held in Atlanta, GA, October 13 - 17, 2001. AMSA's booth, number 2406, will feature a variety of AMSA publications and access to our redesigned web site. AMSA will host a Legal and Regulatory Hot Topics Breakfast for members on October 16 from 8:00 - 10:00 am in the Madrid/Trinidad Room of the Atlanta Marriott Marquis. The meeting will provide an opportunity for AMSA members attending WEFTEC to discuss with EPA personnel and colleagues legal and regulatory topics in the national spotlight, congressional activity, infrastructure funding, and water and wastewater security issues. See the meeting agenda at
http://www.amsa-cleanwater.org/private/membcomm/memupdate/mu01-13.cfm. Please e-mail Jennifer Burke at jburke@amsa-cleanwater.org if you are planning to attend the Hot Topics Meeting.
Register Now for the 2001 AMSA/EPA Pretreatment Coordinators Workshop
The AMSA/EPA Pretreatment Coordinators Workshop will be held in Nashville, Tennessee, November 7 - 9, 2001. The Workshop agenda builds on 11 prior years of informative sessions focused on the latest pretreatment issues. As always, the Workshop provides a unique opportunity for pretreatment professionals from across the nation, and spanning all levels of government, to identify program challenges and work together to create solutions. The workshop format is designed to maximize interaction among attendees and representatives from all levels of government. The hotel cut-off is October 9. Register today on AMSA's website at http://www.amsa-cleanwater.org/meetings/01pretreat/.
Plan to Attend AMSA's 2001 Water & Wastewater Law Seminar
The 2001 Law Seminar, Developments in Water & Wastewater Law, will take place at the Savannah Marriott Riverfront Hotel in Savannah, Georgia, November 14 - 16, 2001. This year's Law Seminar features one of the nation's premiere environmental mediators and negotiation trainers, Dr. Lawrence E. Susskind, Senior Fellow with the Harvard Law School Program on Negotiation. Professor Susskind will provide a dynamic workshop on key tools and approaches to improve the tenor and success of all types of negotiation situations encountered by water and wastewater practitioners, including permitting, enforcement actions, watershed coalitions and neighborhood relations. The Law Seminar also will include discussions on wet weather issues and how the total maximum daily load landscape has changed in recent months. Other topics rounding out the Law Seminar agenda include fish advisories, internet resources for publicly owned treatment works, nutrients, a discussion of new and controversial approaches taken in the Great Lakes Initiative, and a presentation on legal ethics challenges for public agency attorneys by a nationally recognized ethics expert. Register today on AMSA's website at http://www.amsa-cleanwater.org/meetings/01law/.
Plans Already Underway for AMSA's 2002 Winter Conference: Protecting Your Assets
Managing & Protecting Water Infrastructure Assets will be the theme of AMSA's 2002 Winter Conference, which will be held February 5 - 8, 2002 at the Caribe Royale Hotel in Orlando, Fla. The conference will feature sessions on AMSA's efforts on infrastructure security/emergency preparedness and will also focus on the Association's asset management initiatives, including the release of the Managing Public Infrastructure Assets to Minimize Cost & Maximize Performance handbook. Plan now to attend – mark your calendar for February 5 - 8, 2002!
EPA Leadership Developments
Schregardus Withdraws Nomination for EPA Position
Donald Schregardus, nominee for Assistant Administrator of Enforcement and Compliance Assurance, withdrew himself from further consideration on September 18 as a result of growing opposition in the Senate. Schregardus' announcement came after Senate Environment and Public Works (EPW) Committee Chair James Jeffords (I-VT) called for a new investigation of the nominee in the wake of environmental group concerns with his record as head of enforcement for the Ohio EPA. A new nominee has not yet been named by President Bush.
Whitman Names Administrators for Regions VII and X
On September 20, EPA Administrator Christine Todd Whitman named James B. Gulliford as Administrator for Region VII, the Midwest/Great Plains region, and L. John Iani as Administrator for Region X, the Pacific Northwest region. Gulliford comes to EPA from the Iowa Department of Agriculture and Land Stewardship where he has served as director of the Division of Soil Conservation since 1986. Iani previously served as a Vice President of UniSea, one of the nation's largest seafood companies located in Redmond, Wash. Iani has also held positions at the Pacific Seafood Processors Association, and at Seattle law firm Bogle and Gates. In addition, Iani worked as a legislative aide to Sen. Frank Murkowski (R-Alaska) and U.S. Rep. Don Young (R-Alaska). AMSA looks forward to working with the new Regional Administrators on behalf of its member agencies.
Water Quality
EPA Consults AMSA on Draft Water Quality Standards Strategy
On August 23 AMSA met with key staff of EPA's Office of Science and Technology (OST) to provide input into the Agency's development of its Long-Term Strategy for Water Quality Standards and Criteria. The purpose of the strategy is to develop EPA's priorities for the water quality standards and criteria program. AMSA suggested that OST's priorities should include developing guidance for conducting use attainability analyses (UAAs) and providing more time for states to develop nutrient criteria. EPA plans to release the draft strategy for public comment in the fall. AMSA will keep members updated on the strategy's progress.During the meeting, EPA asked AMSA to gather information on our members' UAA experiences. In response, AMSA sent Regulatory Alert 01- 15 with a UAA survey. AMSA is still accepting responses. AMSA will provide the survey results in a subsequent Regulatory Alert.
EPA Proposes Whole Effluent Toxicity Changes
Under a July 1999 Whole Effluent Toxicity (WET) Settlement Agreement, EPA published on September 28, 2001 a proposed rule to ratify, withdraw, or revise virtually all of the WET methods in 40 CFR Part 136. The proposal does not address many of AMSA's WET concerns, documented in a July letter to EPA (http://www.amsa-cleanwater.org/private/legreg/outreach/7-16-01wholeeffluent.pdf). AMSA will develop comments on the proposal and meet with the Office of Science and Technology (OST) and the Office of Wastewater Management (OWM) in November. A future Regulatory Alert will include more detail on the WET proposal.
AMSA Preparing Comments on Ambient Water Bacteria Test Procedures
On August 30 EPA published a proposed rule on Guidelines Establishing Test Procedures for the Analysis of Pollutants; Analytical Methods for Biological Pollutants in Ambient Water. The proposal would amend 40 CFR Part 136 by adding to the list of Agency-approved test methods several analytical test procedures for enumerating in ambient water the bacteria, escherichia coli (E. coli) and enterococci, and the protozoans, cryptosporidium and giardia. The proposal would also make available a suite of Most Probable Number (MPN) and membrane filter methods, including both culture-based and enzyme-substrate techniques. AMSA will prepare comments for the October 29 deadline. If you would like to contribute to the comments, contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org. A copy of the August 30 Federal Register notice can be found at http://www.epa.gov/fedrgstr/EPA-WATER/2001/August/Day-30/w21813.htm.
AMSA Supports EPA TMDL Rule Delay
AMSA provided comments on September 10 in support of EPA's proposed 18 month delay of the effective date of the July 13, 2000 total maximum daily load (TMDL) rule. The delay is intended to allow EPA to evaluate the recent National Research Council review of the program and to conduct a stakeholder dialogue on methods for improving the TMDL program. AMSA's comments recommend that the public discussion focus on regulating nonpoint source polluters, increasing the transparency of the listing and delisting process for impaired waterbodies, promoting state development of water quality standards, and developing interim permitting guidance to allow existing permit limits to be upheld during the period until TMDLs are complete. EPA intends to finalize new TMDL rules, replacing the July 2000 rules, by April 2003. AMSA will work with EPA and other stakeholders to ensure these issues receive full and fair consideration during the review process. AMSA's comments are available at http://www.amsa-cleanwater.org/private/legreg/outreach/9-10-01commentstoEPA.pdf.
EPA Issues State Nonpoint Source Grant Guidance
On September 13 EPA published in the Federal Register Supplemental Guidelines for the Award of Section 319 Nonpoint Source Grants to States and Territories in FY 2002 and Subsequent Years. The guidance addresses the conditions for awarding states Clean Water Act § 319 Nonpoint Source (NPS) Grants in Fiscal Years 2002 and 2003, and is intended to promote the use of § 319 dollars to assist in the implementation of NPS total maximum daily loads (TMDLs). EPA will treat FY 2002 as a transitional year with the full features of the guidelines to be implemented in FY 2003. While the guidelines draw a close link between TMDLs and nonpoint sources, they also reveal EPA's altered position on NPS implementation plans – from requirements under the July 2000 TMDL rule to non-regulatory encouragement to states under the guidelines. See the guidelines at http://www.epa.gov/owow/nps/Section319/fy2002.html.
EPA Releases Compliance and Nonpoint Sources Resources
EPA recently released information on compliance assistance and a new nonpoint source software program.
Compliance Assistance Activity Plan for Fiscal Year 2001 (EPA 305-R-01-002) This document is a part of EPA's mission of providing timely and accessible compliance information. The plan profiles 368 compliance activities taking place across the 10 regions in the U.S. Development of 2002 Plan began this spring and will be issued in the Spring of 2002. The project inventory is available at http://www.epa.gov/clearinghouse.
Beyond Compliance: Supplemental Environmental Projects (EPA 325-R-01-001) Five AMSA member agency projects are profiled in this booklet offering a description of Supplemental Environmental Projects (SEPs), which are taken on by an individual or company in addition to what is required for environmental compliance. All SEPs in the booklet are completed or are currently in progress. The booklet discusses the benefits that can be achieved through these projects. The booklet is available at http://www.epa.gov/oeca/sep.
BASINS 3.0 EPA released version 3.0 of the Better Assessment Science Integrating point and Nonpoint Sources (BASINS) software system. BASINS enables environmental professionals to use GIS tools to examine environmental information, analyze environmental systems, and examine management alternatives. This new release allows users and developers to add their own software to the BASINS system, and includes many new features and improvements including tools to allow users to delineate watersheds, select watershed models, and see and compare the results of several watershed model simulations. CDs with the new version can be ordered from this web site. Information about BASINS 3.0 is available at http://www.epa.gov/ost/basins/.
Wet Weather
AMSA Rebuts NRDC Letter Criticizing Association's SSO Positions
In a September 10 letter to EPA Administrator Whitman, the National Resources Defense Council (NRDC) on behalf of the Environmental Caucus of the Federal Advisory Committee (FACA) on Sanitary Sewer Overflows (SSOs), expressed concerns with AMSA's position on EPA's still to be proposed SSO rule. The NRDC letter contends that AMSA is seeking a program that "reward[s] sewage treatment plant operators that discharge raw sewage from pipes" and gives "free reign to violate Clean Water Act requirements." In a September 19 response to NRDC, AMSA defended its stance saying that the caucus should strive to "direct its future efforts to making constructive, rather than destructive, contributions" on SSO issues. AMSA now is developing detailed responses to the September 10 letter. See the Caucus' September 10 letter at http://www.amsa-cleanwater.org/private/legreg/outreach/9-20-01initialletter.pdf and AMSA's September 19 initial response at http://www.amsa-cleanwater.org/private/legreg/outreach/9-19-01stoner.pdf.AMSA To Issue CSO Companion Report
AMSA's Wet Weather Issues Committee and Combined Sewer Overflow (CSO) Working Group are putting the final touches on a report that will summarize the progress made by the membership in controlling CSOs. AMSA's report will supplement EPA's upcoming CSO Report to Congress. AMSA's report, Communities at Work ... The National Response to Combined Sewer Overflows (referred to as the CSO Companion Report), will summarize data from the Association's recent CSO survey, and provide Congress and EPA with recommendations on how to move the program forward in the coming years. The CSO Companion Report recommends that EPA and Congress take action to: 1) provide new and increased technical and financial assistance; 2) develop guidance for states to conform with the CSO Control Policy's approach; 3) develop new approaches to other wet weather discharges, such as sanitary sewer overflows (SSOs) based on the Policy's basic framework; 4) focus renewed energy and resources on reviewing the applicability of water quality standards to wet weather conditions; and 5) support greater use of urban watershed management principles to set priorities and proportionate accountability for removal of pollutants. AMSA will distribute the CSO Companion Report to AMSA member agencies with CSOs, Congress, EPA, and the states in the next few weeks following EPA's release of its congressionally-mandated report on the implementation of the CSO policy.
Biosolids
Washington Post Publishes AMSA's Letter in Defense of Biosolids
The Washington Post recently published a series of articles and editorials critical of the land application of biosolids. In response to the articles AMSA's Executive Director Ken Kirk wrote a letter to the editor published in the August 29 edition of the Post. In the letter AMSA defended wastewater treatment agencies' use of land application and urged the Post to put an end to its biased coverage of land application and to look at the facts. The letter also pointed out that the Post's coverage of land application "did not report on the critical steps being taken by municipal officials to protect the safety and health of workers and the general public when applying sludge to land." The letter adds that "nowhere has the Post reported on the formidable regulatory structure that ensures the safe application of this resource or the innovative environmental management systems increasingly used by wastewater-treatment agencies to ensure public accountability," adding that "data consistently conclude that . . . land-applied sewage sludge poses no health threat to the public." A copy of AMSA's letter to the editor can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/082401washpost.pdf.
AMSA Urges EarthJustice To Drop Sludge Incinerators from Suits
In an August 23 letter AMSA requested that the EarthJustice Legal Defense Fund remove sewage sludge incinerators (SSIs) from two lawsuits seeking to require EPA to promulgate certain Clean Air Act (CAA) standards for a number of industrial categories and solid waste incinerators. AMSA's letter asserts that "EPA has studied sewage sludge incinerator emissions extensively, evaluated the applicability of CAA § 129 and § 112 to these sources, and made decisions not to regulate them under these specific provisions." Furthermore, AMSA's letter notes that "sewage sludge incinerators are subject to significant air pollution limits, monitoring and recordkeeping requirements under both the CAA and the Clean Water Act." On September 5, EarthJustice refused to drop SSIs from the suits. Accordingly, on September 21 AMSA's Board approved intervention in the suits to protect member agency interests. See AMSA's letter at http://www.amsa-cleanwater.org/private/legreg/outreach/concerning.pdf. EarthJustice's response can be found at http://www.amsa-cleanwater.org/private/legreg/outreach/9-5-01EarthJusticeReply.pdf.
EPA Considers Options For Final Dioxin Limit in Land Applied Biosolids
EPA proposed regulations in 1999 that would set a 300 parts per trillion standard for dioxin in land applied biosolids, and would take no action for dioxin in landfilled or incinerated biosolids. EPA is required to finalize the proposed regulations by December 15, 2001 under a 1989 citizen suit in which AMSA and the Natural Resources Defense Council (NRDC) are parties. Adverse comments on the 1999 proposal led EPA to undertake additional risk assessment and data collection activities at POTWs to inform the final regulations. AMSA also undertook a 2000 Dioxin in Biosolids Survey (Survey) effort of POTWs in 31 states to complement EPA's activities. The preliminary AMSA findings show that the average dioxin in biosolids level is well below EPA's proposed Part 503 limit and that biosolids dioxin levels are on the decline. AMSA plans to release final Survey results later this fall.With the December 15 deadline for final regulations fast approaching, EPA has held two litigation confidential meetings between AMSA, NRDC, and the citizen plaintiffs to provide a status report on their activities. During the most recent meeting on September 24, EPA reported that it has not yet concluded its risk assessment and data analysis activities. NRDC has indicated a desire to await the results of EPA's Agency-wide dioxin reassessment, which is expected to result in a six-times more stringent cancer slope factor for dioxin, before finalizing the rule. EPA has suggested it needs an extension of the Consent Decree deadline. We will keep the membership updated on further discussions in the coming weeks.
Pretreatment
AMSA Steps Up Efforts on Meat Products Effluent Guidelines
On September 13 AMSA met with EPA Office of Science and Technology (OST) Director Geoff Grubbs to discuss POTW concerns with the forthcoming proposed effluent limitations guidelines (ELG) on meat products. Of primary concern is the possibility that under the ELG meat facilities may be required to perform secondary treatment with biological nutrient removal (BNR) before discharging to the POTWs – a potentially duplicative process which could result in a loss of POTW revenue from secondary treatment services. Grubbs told AMSA that no decision has been made on the rule's ultimate form, but committed his staff to providing AMSA with regular updates on the proposal. AMSA has also met with key staff at EPA's Office of Policy, Economics and Innovation on the same issues and will continue to keep the membership updated as the guidelines move forward.
Miscellaneous
AMSA Concerned with EPA's Steps to Reclassify Chlorine Gas as a Pesticide
AMSA is currently collecting information from the membership to ascertain how agencies that use chlorine gas will be affected by EPA efforts to reclassify chlorine gas as a pesticide. In December 2000 AMSA submitted comments to EPA's Office of Pollution, Pesticides and Toxic Substances (OPPTS) on its notice of intent to reclassify the use of chlorine gas for water and sewage treatment as a "restricted use" under federal pesticide labeling and application regulations. This reclassification would allow only certified and trained applicators to use chlorine gas. POTW plant operators using chlorine gas would be required to receive additional training as "certified applicators." The notice also stressed the need to integrate certified applicator training into existing wastewater operator training programs, such as those required under Occupational Safety and Health Administration's (OSHA) Process Safety Management Program and EPA's Risk Management Program. In AMSA's comments, the Association agreed that adequate training and safety procedures are critical to ensure the safe handling and application of chlorine gas, but opposed the proposed action citing the duplicative nature of the requirements. AMSA, state, drinking water, and chlorine industry representatives will meet with OPPTS officials in November to discuss the impacts of this action. A complete copy of the AMSA comments can be viewed at http://www.amsa-cleanwater.org/private/legreg/outreach/Cl212-15-00.pdf
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