[Congressional Record (Bound Edition), Volume 145 (1999), Part 1]
[Extensions of Remarks]
[Pages 338-341]
[From the U.S. Government Publishing Office, www.gpo.gov]



            MUNICIPAL BIOLOGICAL MONITORING USE ACT OF 1999

                                 ______
                                 

                            HON. JOEL HEFLEY

                              of colorado

                    in the house of representatives

                       Wednesday, January 6, 1999

  Mr. HEFLEY. Mr. Speaker, in this new Congress, I am again introducing 
the Municipal Biological Monitoring Use Act (``MBMUA'' or

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``Biomonitoring Bill''). This bill amends the federal Clean Water Act 
(``CWA'' or ``Act''). I would respectfully request its consideration 
this year as separate legislation or in connection with other bills to 
amend the CWA.
  The purpose of this legislation is to ensure that our nation's 
wastewater, stormwater and combined sewer facilities owned by local 
governments are not unfairly exposed to fines and penalties under the 
federal Clean Water Act when biomonitoring or whole effluent toxicity 
tests conducted at those facilities indicate an apparent test failure.
  Similar legislation applicable to sewage treatment facilities was 
introduced in previous Congresses. In recent years, various offices of 
EPA have sought to apply WET test limitations to municipal separate 
storm sewer systems, combined sewer overflows, and other wet weather 
facilities. Therefore, as in the last Congress, this bill would also 
apply to wet weather facilities owned by local or state governments.
  Enforcement of biomonitoring test failures is a concern of local 
governments nationwide. Where whole effluent toxicity is a NPDES permit 
limit, the limit is defined as a test method as provided in EPA 
regulations at 40 C.F.R. part 136. Any permit with whole effluent 
toxicity tests expressed as a discharge limit is subject to enforcement 
by EPA or a state delegated to implement the NPDES permit program, or 
under the Act's citizen suit provisions. Fines and penalties for such 
tests failures are up to $27,000 per day of violation. These tests are 
known, however, for their high variability and unreliability. 
Furthermore, because the source of WET at any given facility is usually 
not known until the tests are conducted, local governments are unable 
to take appropriate action to guarantee against test failure, and hence 
permit violation, before such violation occurs.
  The bill we reintroduce today would retain the use of biomonitoring 
tests as a management or screening tool for toxicity. Our bill would, 
however, shift fine and penalty liability from liability for test 
failures to liability for failure to implement required procedures for 
identifying and reducing the source of WET when detected. In so doing, 
this legislation would in the long-run strengthen environmental 
protection by removing the enforcement disincentive for its use.


                               Background

  EPA or delegated states regulate wastewater discharges from sewage 
treatment, separate storm sewers and combined sewer systems through the 
NPDES permit program. NPDES permits include narrative or numeric 
limitations on the discharge of specifically named chemicals. Treatment 
facilities can be and are designed and built in order to assure 
compliance with such chemical specific limitations before a violation 
occurs. Compliance is determined by conducting specific tests for these 
specifically known chemicals.
  NPDES permits may also include limits to control the unspecified, 
unexpected, and unknown toxicity of the sewage plant effluent which is 
referred to as whole effluent toxicity or WET. The authority for 
biomonitoring tests was added to the Clean Water Act by the 1987 
amendments. Since then, EPA has issued regulations describing 
biomonitoring or WET test methods under Part 136, permit requirements 
under Part 136, and enforcement policies for the use of WET tests as a 
monitoring requirement or as a permit effluent limitation at POTWs. 
Compliance with WET as limits is determined by the results of 
biomonitoring or WET tests.
  Biomonitoring or WET tests are conducted on treatment plan effluent 
in laboratories using small aquatic species similar to shrimp or 
minnows. The death of these species or their failure to grow or 
reproduce as expected in the laboratory is considered by EPA to be a 
test failure and therefore a permit violation.
  Where such tests are included in permits as effluent limits, these 
test failures are subject to administrative and civil penalties under 
the CWA of up to $27,000 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 are 
expressed as permit limits and also fail. The use of biomonitoring test 
failures as the basis for fines and policies is the issue which this 
bill addresses.


                 WET Test Accuracy Cannot Be Determined

  EPA recognizes that the accuracy of biomonitoring tests cannot be 
determined. An October 18, 1995 Federal Register preamble document 
issued by the Agency in promulgating test methods 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 C.F.R. 
Part 136, 60 FR 53535, October 16, 1995.)
  While the Agency cannot determine the accuracy of such tests, EPA 
still requires local governments to certify that WET test results are 
``true, accurate, and complete'' in Discharge Monitoring Reports 
(``DMRs'') 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 may die 
or fail to reproduce normally during test performance through no fault 
of the POTW or its effluent. False positive tests occur frequently. Yet 
test failure is the basis for assessing administrative and civil 
penalties.

  EPA also recognizes that WET is episodic and usually results from 
unknown sources. 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 industrial users cannot assure against WET 
test failures.
  The inaccuracy and high variability of WET tests is the basis of a 
judicial challenge to EPA Part 136 WET test methods brought by the 
Western Coalition of Arid States (``WESTCAS'') in 1996. This litigation 
was settled by the Agency in 1998 but is still under court jurisdiction 
and supervision. Under the settlement, EPA agree to conduct additional 
tests as to the validity of WET testing and the test methods in Part 
136. The responsibility for this new effort to justify the technical 
basis of WET testing is split between the EPA Office of Research and 
Development and the EPA Office of Water.
  Scientific method blank or blind testing for WET tests was conducted 
by WESTCAS in 1997 preceding the settlement with EPA. These blind tests 
were conducted by a series of qualified laboratories throughout the 
United States. The purpose of these blind tests was to quantify the 
natural level of biological variability in test organisms and the 
variability inherent in the test procedures themselves. Without the 
knowledge of the participating laboratories, all of the samples tested 
contained no reference toxicants of any kind, i.e. The samples were 
pure dilution water.
  The results of these tests is highly revealing. Thirty-five per cent 
of the tests failed. Failure in this case means that toxicity was 
reported in non-toxic water samples. The 35% false positives among 
these tests demonstrated the high inaccuracy of the test methods used 
and the inappropriateness of their use as an enforcement weapon. Had 
any of these false positives occurred in actual samples from municipal 
facilities, they would have been subject to fines and penalties of up 
to $27,000 for each violation of a permit limit.
  Even if WET tests are improved, their use as enforcement tools is 
fundamentally unfair because the source of WET is usually unknown and 
cannot be controlled before test failures as permit violations, occur.


                    Municipal Wastewater Facilities

  Municipal sewage treatment and combined facilities are designed to 
control specific chemical pollutants. Stormwater facilities are less 
able to control even specific chemicals. In any event, these local 
government facilities are not designed to control WET, especially in 
view of the fact that POTWs cannot be assured of knowing the specific 
nature of influent discharged to these facilities. To guarantee against 
these test failures before they occur, local governments would have to 
build sewage treatment facilities using reverse osmosis, micro 
filtration, carbon filtration or ion exchange, at great expense to 
citizen rate payers and with potentially very little benefit to the 
environment.
  The CWA and EPA regulations (40 C.F.R. Sec. 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's 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 
     tank.

In the Matter of Metropolitan-Dade County, Miami-Dade Water and Sewer 
Authority, NPDES Permit No. FL00224805.
  In actual practice, however, NPDES permits often restrict species for 
WET tests to a limited number of standard species which may not be 
representative of the stream-specific

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conditions to which local facilities discharge. This situation can also 
result in false test results. The failure to allow for the use of 
indigenous test species is a particular concern to POTWs discharging to 
ephemeral streams located in Western states where nationally uniform 
species could not survive.
  POTWs cannot be assured of knowing what substances are discharged to 
their facilities, as can industrial dischargers. They are community 
systems with thousands or even millions of connections, absolute 
control over which is not feasible. The inability of sewage treatment 
facilities to know the cause of WET failures so that the appropriate 
controls can be installed before test failures occur 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. Constitutional fair notice in such situations is 
critical, and critical to fundamental fairness under the American legal 
system, whether at the federal or state level.
  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 storm sewer systems 
and over combined sanitary and storm sewage systems.
  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.

  The Agency should not rely on a lack of enforcement or enforcement 
discretion to justify this fundamentally unfair enforcement method. Any 
legal requirement that is not based on fair notice lacks credibility 
and undermines basic 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.


        WET Tests Can Be Used as Early-Warning Management Tools

  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 counter-productive to preventing 
toxicity.
  Nothing in the Clean Water Act requires EPA to make WET testing an 
enforceable permit limitation. As originally conceived by EPA personnel 
who developed biomonitoring test protocols, these tests, when made 
reliable, could be used as a screening or management tool for detecting 
WET, rather than for enforcement purposes. Since the 1987 amendments, 
however, through regulations and enforcement policies, 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 that 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 tests failures to local government 
failure to implement a tiered compliance process and schedule for 
locating and reducing the source of toxicity.
  The bill we reintroduce today adopts the second alternative and 
retains the use of WET as an enforceable part of the Clean Water Act 
by:
  Amending Sections 303 and 402 of the CWA to prohibit the finding of a 
violation under the strict liability provisions of the Act for a 
failure of a 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 species as will indicate the 
toxicity of the effluent in the actual 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 for 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 in-stream excursion above a narrative or numeric 
criterion for WET. Our bill would also direct that the NPDES permit 
must allow the permittee 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; 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 locate and reduce toxicity.
  This bill would assure the use of these tests as tools to prevent 
pollution by respecting their technical limitations, eliminating 
penalties for test failures, and preserving the enforceability of 
procedures to locate and reduce whole effluent toxicity when detected.
  I urge my colleagues to join me in cosponsoring this legislation and 
I urge its consideration and enactment in this Congress.

                                H.R. --

       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.

       (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) by inserting after the third sentence of subparagraph 
     (B) 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.'';
       (2) by striking the period at the end of subparagraph (B) 
     and inserting the following: ``; except 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
       (3) 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 such 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.--Section 402 of such 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.--
       ``(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)

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     permit term, condition, or limitation shall be in 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 permittee 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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