Everyone agrees that enforceable Clean Water Act (CWA) permit levels are important. The analytical procedures used to detect the pollutants don’t garner such universal agreement, though. The U.S. Environmental Protection Agency (EPA) discovered this a few years ago when it published and later withdrew proposed revisions to the requirements for the approval of analytical methods (i.e., test procedures) for chemical pollutants under the CWA. The agency’s subsequent actions open up new opportunities for stakeholders to take part in the process.
As CWA permit holders know well, EPA’s analytical methods specify detection limits that define whether a pollutant is present. These limits describe the concentration of a pollutant that can be measured with a known level of confidence. Governmental bodies that administer and enforce limits under the National Pollutant Discharge Elimination System (NPDES) applicable to direct discharges into water often use these values as reporting and compliance limits and in administering and enforcing pretreatment programs for indirect discharges.
In March 2003, EPA issued a proposed rule to revise the detection and quantitation procedures and sought comments. Responses included strongly divergent views and conflicting suggestions on the proposed revisions as well as recommendations on new procedures. EPA withdrew its proposed rule in November 2004, concluding that it would obtain better results by establishing a dialogue with individual stakeholders to resolve the complex technical and policy issues identified in public comments.
EPA’s administrative response to the many divergent comments received is neither new nor surprising. Increasingly, EPA seeks to harmonize divergent views through the creation of Federal Advisory Committee Act (FACA) Advisory Committees. FACA was enacted in 1972 to govern the creation, operation and termination of Executive Branch committees that provide advice to the federal government. These committees are designed to maximize public access to advisory committee deliberations and, according to EPA, minimize the influence of “special interests groups.” Advisory committees are expected to be fairly balanced in terms of viewpoints and to make recommendations based on the committee’s independent judgment.
For its CWA test-methods initiative, EPA is fostering a dialogue with stakeholders through the creation of a Federal Advisory Committee on Detection and Quantitation Approaches and Uses in CWA Programs (Committee). EPA has asked the committee to analyze and evaluate relevant scientific and statistical approaches and protocols and to review data and interpretations of data using current and recommended approaches. EPA wants the Committee to provide advice and recommendations on policy issues related to detection and quantitation procedures and on the scientific and technical aspects of these procedures.
In June, the committee held a public meeting on the procedures. Representatives from various regulated community groups agreed that current procedures are not working and whatever procedures EPA develops need to be flexible, cost-effective, clear and understandable. EPA spokespersons stated that new procedures are needed because technologies are becoming available that can detect chemicals in wastewater samples at increasingly lower and lower levels. There was clear consensus that new procedures must be based on science and be legally defensible.
Where and when the committee concludes its review is unclear. Given the challenging technical issues to be addressed, the committee will likely take a few years to come up with consensus recommendations on such matters as developing detection and quantitation procedures. It is important nonetheless for stakeholders to know that this committee exists and to carefully monitor its progress.
Because of the nature and purpose of FACA, the committee’s deliberations are open, transparent and conducive to broad, meaningful participation. The committee’s proceedings are noted on an EPA website (http://www.epa.gov/waterscience/methods/ det/index.html). Vendors of contaminant detection equipment and NPDES permit holders alike should stay current on committee activities and, ideally, participate in them regularly. For vendors, the activities could identify commercial opportunities. For permit holders, knowing that new technology is available or new approaches to testing protocols are emerging could have a direct and substantial impact on CWA permit-limit compliance strategies.
By Lynn Bergeson, regulatory editor. She is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. Contact here at email@example.com. The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.