Volume 143, No. 98 covering the 1st Session of the 105th Congress (1997 - 1998) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“THE MUNICIPAL BIOLOGICAL MONITORING USE ACT” mentioning the Environmental Protection Agency was published in the Extensions of Remarks section on pages E1414-E1416 on July 11, 1997.
The publication is reproduced in full below:
THE MUNICIPAL BIOLOGICAL MONITORING USE ACT
______
HON. JOEL HEFLEY
of colorado
in the house of representatives
Friday, July 11, 1997
Mr. HEFLEY. Mr. Speaker, I am pleased to join my colleague, Mr. Pastor, in introducing H.R. 2138, the Municipal Biological Monitoring Use Act. The purpose of this legislation is to establish for the Environmental Protection Agency new criteria for biomonitoring or whole effluent toxicity tests at local government sewage treatment plants, also known as publicly owned treatment works, or POTW's.
Similar legislation applicable to POTW's was introduced in previous Congresses. In recent months, the EPA has also sought to apply WET test limitations to municipal separate storm sewer systems, combined sewer overflows and other wet weather discharges and control facilities. Therefore, this updated version of our bill is also applicable to these storm water-related discharges owned by local governments.
Enforcement of biomonitoring test failures is a concern of POTW's nationwide and particularly in the arid West because of the unique water quality characteristics of low flow and ephemeral streams located in that region.
The bill we introduce today would retain the use of biomonitoring tests as a management or screening tool for toxicity, while shifting fine and penalty liability for test failures to liability for failure to implement permit-required procedures for identifying and reducing the source of WET when detected.
background
The EPA regulates wastewater discharges from POTW's through the National Pollutant Discharge Elimination System, or NPDES, permit program. NPDES permits include narrative or numeric limitations on the discharge of specifically named chemicals. Treatment facilities for these named chemicals can be designed and built in order to assure compliance with such limitations before a violation occurs. Compliance is determined by conducting specific tests for these named chemicals.
NPDES permits may also include limits on the unspecified toxicity of the entire sewage plant effluent which is known as whole effluent toxicity. Compliance with these limitations is determined by the results of biomonitoring or whole effluent toxicity, or WET tests. The authority for biomonitoring tests was added to the Clean Water Act by the 1987 amendments. Since then, EPA has issued biomonitoring test methods, permit requirements, and enforcement policies for the use of WET tests as a monitoring requirement or as a permit effluent limitation at POTW's.
Biomonitoring or WET tests are conducted on treated plant effluent in laboratories using small aquatic species similar to shrimp or minnows. The death of these species or their failure to grow as expected in the laboratory is considered by EPA to be a test failure.
Where such tests are included in permits as effluent limits, these test failures are subject to administrative and civil penalties under the Clean Water Act of up to $25,000 per day of violation. Test failures also expose local governments to enforcement by third parties under the citizen suit provision of the act.
WET test failures can also trigger toxicity identification and reduction evaluations that include additional testing, thus exposing local governments to additional penalties if these additional tests also fail.
wet test accuracy cannot be determined
The EPA recognizes that the accuracy of biomonitoring tests cannot be determined. An October 16, 1995, Federal Register preamble document issued by the agency in promulgating guidelines establishing test procedures for the analysis of pollutants determined that: ``Accuracy of toxicity test results cannot be ascertained, only the precision of toxicity can be estimated.'' (EPA, Guidelines for Establishing Test Procedures for the Analysis of Pollutants, 40 CFR part 136, 60 FR 53535, October 16, 1995.)
While the agency cannot determine the accuracy of such tests, the EPA still requires local governments to certify that WET test results are
``true, accurate and complete'' in discharge monitoring reports required by NPDES permits. This is a true catch-22 requirement.
Laboratory biomonitoring tests are known to be highly variable in performance and results. Aquatic species used as test controls often died during test performance. False positive tests occur frequently. Yet test failures are the basis for assessing administrative and civil penalties to enforce permit limitations for WET.
The EPA also recognized that WET is episodic and usually results from unknown sources until they are detected and located through WET tests. These unknown sources can include synergistic effects of chemicals, household products such as cleaning fluids or pesticides and illegal discharges to sewer systems. Even a well-managed municipal pretreatment program for municipal users cannot assure against WET test failures.
POTW's are designed to control specific chemical pollutants. Treatment facilities are not designed, however, to control WET before detection by biomonitoring test failures because POTW's cannot be assured of knowing the specific nature of sewage influent discharged to the treatment plant. To guarantee against these test failures before they occur, local governments would have to build sewage treatment facilities using reverse osmosis, micorfiltration, carbon filtration, ion exchange or ozone at great expense to citizen rate payers.
The Clean Water Act and EPA regulations (40 CFR 122.44(d)(1)(iv)) require that toxicity be determined based on actual stream conditions. An EPA administrative law judge decision issued in October 1996 confirmed this interpretation in ruling:
Although some form of WET monitoring may be legally permissible, there must be a reasonable basis to believe the permittee discharge could be or become acutely toxic. In addition, the proposed tests must be reasonably related to determining whether the discharge could lead to real world toxic effects. The CWA objective to prohibit the discharge of
``toxic pollutants in toxic amounts'' concerns toxicity in the receiving waters of the United States, not the laboratory tanks.
in the matter of metropolitan-dade county, miami-dade water and sewer authority
In practice however, NPDES permits often restrict species for WET tests to a limited, nationally recognized number which may not be representative of the stream-specific conditions to which local facilities discharge. This situation can result in false test results. The failure to allow the use of indigenous test species is a particular concern to POTW's discharging to ephemeral streams located in Western States where nationally uniform species could not survive in any case.
POTW's cannot be assured of knowing what substances are discharged to their plants, as can industrial dischargers. They are community systems with thousands or even millions of connections, absolute control over which is not feasible. Requiring POTW's to know the cause of WET failures so that the appropriate controls can be installed before test failures is fundamentally unfair because the local governments owning these plants do not have notice of what they must do to conform their behavior to the requirements of law.
There is less basis for making WET test failures subject to fines and penalties for storm water-related discharges because local governments are able to exercise even less control over such systems.
The EPA may say that WET test failures often are not enforced under the agency's exercise of administrative discretion. However, the opportunity for such enforcement remains particularly where an enforcement action is based on one or more permit violations. More importantly, the credibility of any legal requirement that is not built on the principal of fair notice is damaged whether enforcement occurs once or many times. Additionally, third party suits are not subject to the exercise of EPA review and discretion.
There is less basis for making WET test failures subject to fines and penalties for storm water-related discharges because local governments are able to exercise even less control over such systems.
The EPA may say that WET test failures often are not enforced under the agency's exercise of administrative discretion. However, the opportunity for such enforcement remains, especially as more permittees are faced for the first time with enforceable WET permit limits and where an enforcement action is based on one or more alleged permit violations. More importantly, any legal requirement that is not based on fair notice lacks credibility and undermines due process principles whether enforcement occurs once or many times. Additionally, third-
party suits are not subject to the exercise of EPA review and discretion.
Procedures for locating and reducing the source toxicity can require accelerated testing which would expose local governments to additional penalty liability. Thus, the agency's insistence on making WET tests subject to penalties has become counterproductive to preventing toxicity.
Nothing in the Clean Water Act requires the EPA to make WET testing an enforceable permit limitation. As originally conceived, these tests should be used as a screening or management tool for detecting WET, rather than for enforcement purposes. Since the 1987 amendments, however, the EPA has persisted in making WET test failures violations of permit limitations even though these tests are technically unsound and fundamentally unfair for enforcement purposes.
It is for these reasons a legislative solution is necessary.
alternative legislative solution needed
One legislative alternative would make WET testing a monitoring only permit requirement. Another alternative would shift the enforceability of WET permit requirements from WET test failures to local government failure to implement a tiered compliance process and schedule for locating and reducing the source of toxicity.
Our bill, H.R. 2138, adopts the second alternative and retains use of WET as an enforceable part of the Clean Water Act by:
Amending sections 303 and 402 of the Clean Water Act to prohibit the finding of a violation of the act in the case of a biomonitoring or WET test conducted at publicly owned treatment works, municipal separate storm sewer systems and municipal combined sewer overflows, including control facilities, and other wet weather control facilities;
Requiring that criteria for WET must employ an aquatic species that is indigenous to the type of waters, a species that is representative of such species or such other appropriate specie as will indicate the toxicity of the effluent in the specific receiving waters. Such criteria must take into account the natural biological variability of the species and must ensure that the accompanying test method accurately represents actual instream conditions, including conditions associated with dry and wet weather;
Authorizing NPDES permit terms, conditions or limitations to include enforceable procedures requiring further analysis, toxicity identification evaluation [TIE] or toxicity reduction evaluation [TRE] for WET where an NPDES permit authority determines that the discharge from the applicable facility causes, has the reasonable potential to cause or contributes to an instream excursion above a narrative or numeric criterion for WET. The bill would also direct that the NPDES permit must allow the permittee to discontinue such procedures, subject the future reinitiation of such procedures upon a showing by the permitting authority of changed conditions, if the source of such toxicity cannot, after thorough investigation, be identified; and requiring the use of such NPDES permit terms, conditions or limitations only upon determination that such terms, conditions or limitations are technically feasible, accurately represent toxicity associated with wet weather conditions and can materially assist in an identification evaluation or reduction evaluation of such toxicity.
WET testing should be used as a management tool to locate and reduce WET. The assessment of penalties for test failures or the potential for assessment has become a recognized disincentive for the use of WET tests including accelerated testing to local and reduce toxicity.
Our bill, H.R. 2138, would assure the use of these tests as tools to prevent pollution by respecting their technical limitations, eliminating penalties for test failures, preserving the enforceability of procedures to locate and reduce whole effluent toxicity when detected and thereby eliminate the disincentive for their use.
We urge your support and cosponsorship of this legislation.
H.R. 2138
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Municipal Biological Monitoring Use Act''.
SEC. 2. BIOLOGICAL MONITORING AT PUBLICLY OWNED TREATMENT
WORKS, MUNICIPAL SEPARATE STORM SEWER SYSTEMS,
AND MUNICIPAL COMBINED SEWER OVERFLOWS,
INCLUDING CONTROL FACILITIES, AND OTHER WET
WEATHER CONTROL FACILITIES.
(a) Biological Monitoring Criteria.--Section 303(c)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1313(c)(2)) is amended--
(1) in subparagraph (B)--
(A) by striking the period at the end and inserting the following: ``: Provided, That for publicly owned treatment works, municipal separate storm sewer systems, and municipal combined sewer overflows, including control facilities, and other wet weather control facilities, nothing in this Act shall be construed to authorize the use of water quality standards or permit effluent limitations which result in the finding of a violation upon failure of whole effluent toxicity tests or biological monitoring tests.''; and
(B) by inserting after the third sentence the following:
``Criteria for biological monitoring or whole effluent toxicity shall employ an aquatic species that is indigenous to the type of waters, a species that is representative of such species, or such other appropriate species as will indicate the toxicity of the effluent in the specific receiving waters. Such criteria shall take into account the natural biological variability of the species, and shall ensure that the accompanying test method accurately represents actual in-stream conditions, including conditions associated with dry and wet weather.''; and
(2) by adding at the end the following:
``(C) Where the permitting authority determines that the discharge from a publicly owned treatment works, a municipal separate storm sewer system, or municipal combined sewer overflows, including control facilities, or other wet weather control facilities causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criterion for whole effluent toxicity, the permit may contain terms, conditions, or limitations requiring further analysis, identification evaluation, or reduction evaluation of such effluent toxicity. Such terms, conditions, or limitations meeting the requirements of this section may be utilized in conjunction with a municipal separate storm sewer system, or municipal combined sewer overflows, including control facilities, or other wet weather control facilities only upon a demonstration that such terms, conditions, or limitations are technically feasible, accurately represent toxicity associated with wet weather conditions, and can materially assist in an identification evaluation or reduction evaluation of such toxicity.''.
(b) Information on Water Quality Criteria.--Section 304(a)(8) of the Federal Water Pollution Control Act (33 U.S.C. 1314(a)(8)) is amended by inserting ``, consistent with subparagraphs (B) and (C) of section 303(c)(2),'' after
``publish''.
(c) Use of Biological Monitoring or Whole Effluent Toxicity Testing at Publicly Owned Treatment Works, Municipal Separate Storm Sewer Systems, or Municipal Combined Sewer Overflows, Including Control Facilities, or Other Wet Weather Control Facilities.--Section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end the following:
``(q) Use of Biological Monitoring or Whole Effluent Toxicity Testing at Publicly Owned Treatment Works, Municipal Separate Storm Sewer Systems, or Municipal Combined Sewer Overflows, Including Control Facilities, or Other Wet Weather Control Facilities.--
``(1) In general.--Where the Administrator determines that it is necessary in accordance with subparagraphs (B) and (C) of section 303(c)(2) to include biological monitoring, whole effluent toxicity testing, or assessment methods as a term, condition, or limitation in a permit issued to a publicly owned treatment works, a municipal separate storm sewer system, or a municipal combined sewer overflow, including a control facility, or other wet weather control facility pursuant to this section, such permit term, condition, or limitation shall be accordance with such subparagraphs.
``(2) Responding to test failures.--If a permit issued under this section contains terms, conditions, or limitations requiring biological monitoring or whole effluent toxicity testing designed to meet criteria for biological monitoring or whole effluent toxicity, the permit may establish procedures for further analysis, identification evaluation, or reduction evaluation of such toxicity. The permit shall allow the permitee to discontinue such procedures, subject to future reinitiation of such procedures upon a showing by the permitting authority of changed conditions, if the source of such toxicity cannot, after thorough investigation, be identified.
``(3) Test failure not a violation.--The failure of a biological monitoring test or a whole effluent toxicity test at a publicly owned treatment works, a municipal separate storm sewer system, or a municipal combined sewer overflow, including a control facility, or other wet weather control facility shall not result in a finding of a violation under this Act.''.
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