[Congressional Record Volume 143, Number 98 (Friday, July 11, 1997)]
[Extensions of Remarks]
[Pages E1414-E1416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              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.


[[Page E1415]]

 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

[[Page E1416]]

     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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