TMDL rule needs more work, EPA director concludes

EPA Administrator Christie Whitman filed a motion on July 16, 2001, in the District of Columbia Circuit Court requesting an 18-month stay on lawsuits challenging changes to the Total Maximum Daily Loads (TMDL) rule. (By Kathy Pursley, IWW Editor)

By Kathy Pursley
Editor, Industrial WaterWorld

August 7, 2001 — EPA Administrator Christie Whitman filed a motion on July 16, 2001, in the District of Columbia Circuit Court requesting an 18-month stay on lawsuits challenging changes to the Total Maximum Daily Loads (TMDL) rule.

The agency requested the additional time to review and revise the controversial July 13, 2000, rule to achieve a program that is workable and that meets the goal of clean water.

The Clean Water Act requires states to identify waters not meeting water quality standards and to develop plans for cleaning them up. The framework for these plans is the TMDL program. A TMDL is essentially a prescription designed to restore the health of the polluted body of water by indicating the amount of pollutants that may be present in the water and still meet water quality standards.

"Unfortunately, many have said the rule designed to implement the TMDL program falls short of achieving the goals," said Whitman.

More than 20,000 bodies of water across America have been identified as polluted. These waters include more than 300,000 river and shoreline miles and five million acres of lakes. EPA estimates that more than 40,000 TMDLs must be established.

"I am asking for this additional time to listen carefully to all parties with a stake in restoring America's waters -- states, cities, small towns and rural communities, plus industry, the environmental community and farmers -- to find a better way to finish the important job of cleaning our great rivers, lakes and streams," said Whitman.

Whitman initiated the legal postponement and the rule review following the release of a study completed in June by the National Academy of Sciences (NAS). The study makes a number of recommendations for improving the program.

Because of the TMDL rule controversy, Congress had prohibited EPA from putting the new rule into effect and denied funds for that purpose in October 2000. The House of Representatives is standing firm by its decision and continued withholding additional enforcement money from EPA. It recently defeated a measure that would have provided the agency with an additional $25 million.

"Water quality standards are the benchmark for establishing whether a waterbody is impaired; if the standards are flawed (as many are), all subsequent steps in the TMDL process will be affected, " said the NAS report.

According to the report, continued extensive EPA oversight of TMDLs may not be feasible. EPA may place a premium on developing plans instead of taking actions, and it may inhibit the nation's progress toward improved water quality. The report proposes an approach that may require increased state responsibility for individual TMDLs, with EPA oversight focused at the program level instead of on each individual water segment.

The report states that plans for future regulatory rules and public spending should be tentative commitments subject to revision as the industry learns how the system responds to actions taken early on. Calls to make policy decisions based on "the science," or calls to wait until "the science is complete" reflect a misunderstanding of scientific methods. Expectations for the contribution of "science" to water quality management need to be tempered by an understanding that uncertainty cannot be eliminated.

By definition, science is the process of continuing inquiry. The NAS report calls for a scientific approach it terms as "adaptive implementation," which is a "process of taking actions of limited scope commensurate with available data and information to continuously improve understanding of a problem and its solution, while at the same time making progress toward attaining a water quality standard."

The report recommends:

1. Use simpler models: EPA should not advocate detailed mechanistic models for TMDL development in data poor situations. EPA should support research to develop simpler models and to provide guidance for determining the level of detail required in TMDL modeling.

2. Study pilot watersheds: Rather than detailed models being prepared for every impaired waterbody, the results of pilot TMDLs prepared for a benchmark watershed (e.g. a typical suburban or agricultural watershed) could be extrapolated to similar watersheds.

3. Follow accepted scientific method: EPA should increase the scientific foundation of the TMDL program by enacting an administrative rule to incorporate the elements of adaptive implementation, which the committee feels, embodies scientific method.

4. Address barriers to policy: Congress and EPA should address the issues of future growth, the equitable distribution of cost and responsibility among sources of pollution, and EPA oversight, which act as policy barriers to the use of adaptive implementation.

5. Before TMDL, conduct a Use Attainability Analysis (UAA): UAA should be considered for all waterbodies because an appropriate water quality standard must be defined before a TMDL is developed. EPA should issue new guidance that covers different levels of detail for waterbodies of different size and complexity, broadened evaluation and decision guidelines. The decision to do a UAA for any waterbody should rest with each state.

Over the next several months, EPA will conduct a stakeholder process and intends to propose necessary changes by Spring 2002. It hopes to adopt such changes within the 18-month time frame.

In other enforcement news:

Illinois bans MTBE

Illinois Gov. George Ryan signed a bill recently that will ban the gasoline additive methyl tertiary-butyl ether (MTBE) from Illinois beginning in 2004. Both MTBE and ethanol add oxygen to gasoline to make it burn cleaner. Ryan said MTBE is suspected of contaminating groundwater in several states. The state's Environmental Protection Agency (EPA) will provide technical assistance and money to test drinking water for MTBE contamination.

Alaska wastewater official sentenced

On June 20, Andrew Bronson, wastewater utility division superintendent, City/Borough of Juneau, Alaska, was sentenced to six months home confinement and a $10,000 fine for violating the Clean Water Act (CWA) by tampering with effluent samples from Juneau's Mendenhall treatment facility. Bronson admitted using tap water to dilute effluent samples intended for wastewater analysis.

Virginia company, former official sentenced

On June 20, Rehrig International Inc. pleaded guilty to negligently violating the Clean Water Act (CWA) and was ordered to pay a $200,000 fine and provide $300,000 for pollution prevention and control activities. The company's production process includes metal plating and coating shopping cart chassis with nickel and chromium. Rehrig was charged with discharging chromium into city sewers in amounts approximately 30 times the permit limits, and nickel in amounts six times the permit limits. In a related case, J. Gregory Dant, former pollution control operator at Rehrig, was sentenced to six months home confinement and five years probation for violating the CWA by tampering with pollution monitoring equipment.

U.S. reaches Clean Water agreement with Amtrak

The U.S. Environmental Protection Agency and the Justice Department announced that Amtrak, the nation's largest passenger rail operator, has signed an agreement to carry out environmental audits and voluntarily disclose and correct problems at 51 of its facilities nationwide, and undertake other environmental improvements including projects to restore wetlands and reduce PCBs in locomotive transformers. The agreement settles claims that Amtrak violated numerous requirements of the Clean Water Act, including its storm water provisions, at nine Amtrak sites in New England.

The company also will pay a $500,000 civil penalty and spend $900,000 on environmental projects in New England under the settlement filed in U.S. District Court in Boston.

The agreement with Amtrak is the federal government's second nationwide settlement addressing storm water violations. On June 7, the United States announced a settlement with Wal-Mart Stores Inc. to resolve claims that the retailer violated storm water requirements at 17 locations across the country.

The settlement stems from environmental violations discovered by the EPA in the late 1990s at Amtrak facilities in Massachusetts, Connecticut and Rhode Island. The agency cited Amtrak for violating the Clean Water Act's storm water provisions and for other infractions.

Amtrak also has begun to implement a company-wide environmental management system, at a cost anticipated to exceed $11 million. The program includes the development of an environmental audit program, a company-wide environmental information system, enhanced environmental compliance training, and increased environmental compliance staffing. Amtrak already has created 27 new environmental positions - a three-fold increase from staffing levels at the time the EPA first discovered the Clean Water Act violations.

The violations include a failure to have required storm water permits, pollution prevention plans and necessary spill prevention plans, and a failure to sample its effluent according to discharge permit requirements. The EPA also found violations of discharge permit effluent limits and determined that Amtrak failed to obtain a discharge permit from the Narragansett Bay Commission in Rhode Island.

The settlement requires Amtrak to implement an environmental project to improve tidal flows at seven culvert locations along Amtrak's Shore Line rail route, between Branford and Stonington, Conn. The work, which will include excavating creek channels, removing obstructions, and repairing and upgrading culverts, is expected to benefit coastal wetlands by improving tidal flushing. Many of those wetlands have been compromised over the years by a lack of tidal flushing. The project, which will cost about $400,000, will begin within 60 days and will be completed by October 2002.

Amtrak also will spend about $500,000 to retrofill 13 locomotive transformers in order to dramatically lower their concentrations of PCBs. The work will be directed at reducing PCBs in the environment and, in particular, minimizing the potential environmental impact from a rail mishap or spill. When the work is complete, concentrations of PCBs in Amtrak's transformers will be up to 20 times lower than the 1,000 parts per million allowed under federal law.

Consent decree proposed in fish kill case

The Department of Justice has made a proposed consent decree with Guide Corporation. The proposed consent decree relates to a massive fish kill that occurred in the White River in December 1999 and January 2000, from the City of Anderson, IN, downstream past the City of Indianapolis, IN.

Guide operates an automotive lighting parts production facility in Anderson and is alleged to have discharged industrial wastewater from the Anderson Facility that caused the fish kill.

The proposed consent decree would resolve U.S. and state claims against Guide under the Clean Water Act and the Resource Conservation and Recovery Act, the release reporting provisions of Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and section 304 of the Emergency Planning and Community Right-to-Know Act, the natural resource damage provisions of CERCLA, the response cost recovery provisions of CERCLA.

As required by the proposed consent decree, Guide already has paid $10,025,000. If the proposed consent decree is approved and entered by the Court, that $10,025,000 could be divided as follows: (1) $2,000,000 in civil penalties would be split evenly between the United States and the State; (2) $2,000,000 in CERCLA response costs and natural resource damage assessment costs would be paid to the State; (3) $25,000 in natural resource damage assessment costs would be paid to the U.S. Department of the Interior; and (4) $6,000,000 would be paid into two ``White River Restoration Funds'' to be established by the State, to fund fish restocking and river restoration projects.

The proposed consent decree also requires that Guide complete a RCRA Compliance Audit Program, designed to ensure that waste materials are not being improperly stored in pipes, equipment, tanks, sumps, and trenches in specified areas at the Anderson Facility. After completing the Compliance Audit Program, Guide would be required to submit a comprehensive Compliance Audit Report to the U.S. Environmental Protection Agency and the Indiana Department of Environmental Management.

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