Office of Inspector General
Audit Report
Region III Water Quality
Standards, Monitoring, and Reporting
E1HWF7-03-0160-9100118
March 31,1999
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Inspector General Division
Conducting the Audit
Region Covered:
Program Offices Involved:
Mid-Atlantic Audit Division-
Philadelphia, PA
Region 3
Office of Water
Region III Water Protection
Division
Region III Environmental
Services Division
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t> UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
| WASHINGTON, D.C. 20460
U.S. EPA Headquarters Library THE INSPECTOR GENERAL
Mat) code 3201
1200 Pennsylvania Avenue NW
Washington DC 20460
March 31, 1999
MEMORANDUM
SUBJECT: Region III Water Quality Standards, Monitoring, and Reporting
Audit Report Number E1HWF7-03-0160-9100118
FROM: Michael Simmons
Deputy Assistant Inspector General for Internal Audits
TO: J. Charles Fox
Assistant Administrator for Water (4101)
W. Michael McCabe
Regional Administrator (3RAOO)
Attached is our final audit report on Region III Water Quality Standards,
Monitoring, and Reporting, The overall objectives of this audit were to determine:
(1) whether Region III implemented effective procedures to evaluate State water
quality standards, monitoring, and reporting; and, (2) whether the State of
Maryland implemented procedures to develop standards, monitor its waters,
and report on its water quality. This report contains recommendations to the
Assistant Administrator for Water and to the Regional Administrator of Region III.
This audit report contains findings that describe problems the Office of Inspector
General (OIG) has identified and corrective actions the OIG recommends. This
report represents the opinion of the OIG. Final determination on matters in this
report will be made by EPA managers in accordance with established EPA audit
resolution procedures. Accordingly, the findings contained in this audit report do
not necessarily represent the final EPA position, and are not binding upon EPA in
any enforcement proceeding brought by EPA or the Department of Justice.
ACTION REQUIRED
In accordance with EPA Order 2750, the action officials are required to provide us a
written response to the audit report within 90 days of the date of this report. The
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Assistant Administrator for Water need only address the recommendation in
Chapter 2. The Region III Administrator is responsible for the remaining
recommendations. These responses should address all recommendations and
include milestone dates for corrective actions. This will assist us in deciding
whether to close this report.
We have no objections to the further release of this report to the public. Should
your staff have any questions about this report, please have them contact Michael
Wall or Carl Jannetti at (215) 814-5800, or Ernie Ragland at (202) 260-8984.
Attachment
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EXECUTIVE SUMMARY
Objectives
Results-In-Brief
The objectives of our audit were to determine:
1. Whether Region III implemented effective procedures to
evaluate State water quality standards, monitoring, and
reporting.
2. Whether the State of Maryland implemented procedures
to:
+ Develop standards that will protect the State's
water quality,
* Monitor the quality of State waters, and
* Ensure reports on water quality are accurate,
complete, and useful to program management.
Our audit disclosed several areas needing improvement with
respect to the water quality programs in the States within
Region III.
Bacteria In Water Not Properly Assessed Or Reported
Elevated bacteria levels can be hazardous to people using the
water for recreational activities, such as swimming or water
skiing. Bacteria can cause illnesses including sore throats,
ear infections, diarrhea, gastroenteritis, meningitis, and
encephalitis. The Clean Water Act requires EPA to develop
and publish criteria for assessing water quality based on the
latest scientific knowledge. States are then to adopt these
criteria, or criteria that are at least as protective as EPA's.
In 1986, EPA published its Ambient Water Quality Criteria
for Bacteria, which recommended Enterococcus and E. coli as
bacteriological indicators of harmful pathogens. However, as
of 1998, Delaware is the only State within Region III to adopt
either of these two criteria. The remaining States use fecal
Keport No. E1HWF7-03-0160-910018
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coliform, a criterion developed in the 1960's to assess their
water quality. Thus, by not assuring that States adhere to
the Clean Water Act by using criteria based on the latest
scientific knowledge, the Agency implicitly allowed States to
use a less protective criterion to assess the bacteriological
quality of their water bodies. As a result, water bodies with
bacterial contamination may remain undetected and
unreported, and the public may be unknowingly exposed to
harmful bacteria.
In addition to not adopting the EPA bacteriological criteria,
the State of Maryland did not implement its own criteria, or
follow EPA guidance when assessing and reporting water
bodies impaired by bacteria.
Deficient Standards Were Not Corrected
Water quality standards in Maryland, Delaware,
Pennsylvania, Virginia, West Virginia and the District of
Columbia, were inadequate in 1998, even though EPA
identified some deficiencies as far back as 1990.
Consequently, State standards do not protect the waters in
Region III as intended by the Clean Water Act, and the
Agency risks being sued for not promulgating adequate
water quality standards. This occurred because Region III
did not fully use its authority, or fulfill its responsibility, to
ensure that deficient standards were corrected. Specifically,
Region III did not issue written notices to the States, or
elevate these issues to the EPA Administrator, who then
would have had the authority to make promulgation
decisions.
Missed Opportunities To Correct Standards
The Clean Water Act requires each State to: (a) hold public
hearings at least every three years to review its water
quality standards; and, (b) submit the results of these
reviews to the Administrator of EPA. The purpose of these
"Triennial Reviews" is to determine the need for additional
standards or for the revision to existing standards. Thus, if
hearings are not held and standards not reviewed, the public
and EPA have less assurance as to the adequacy of State
water quality standards. At the time of our audit, West
Virginia was the only State within Region III to have
ii
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completed its Triennial Review timely. The other States did
not complete their reviews because the Agency has not
enforced its authority under the Clean Water Act.
Planning Documents Were Not Prepared Or Updated
States in Region III did not prepare or update water quality
planning documents as required by the Clean Water Act and
by Federal regulations. These documents include:
Continuing Planning Process Documents, Water Quality
Management Plans, Monitoring Strategies, Quality
Assurance Management Plans, and Quality Assurance
Project Plans. Regional personnel argued that certain
documents were not actually required to be submitted, or
that other documents were suitable substitutes. The absence
of these documents lessens confidence that States are
effectively managing their programs to clean up water
bodies. Moreover, the absence of Continuing Planning
Process Documents has resulted in lawsuits against EPA in
Delaware, Maryland, Pennsylvania, and Virginia.
From fiscal year 1995 through 1998, States in Region III
received Federal funds exceeding $35.5 million to fulfill a
wide range of water quality activities required under the
Clean Water Act, including: (a) developing and reviewing
standards; (b) monitoring and assessing the water; and, (c)
preparing the reports and documents required under the Act.
Recommendations We recommend that the Assistant Administrator for Water
work to ensure that, if States do not amend their water
quality standards to include the Agency's 1986 Ambient
Water Quality Criteria for Bacteria, appropriate action is
taken to resolve the deficiency.
We recommend the Region III Administrator:
4 Take appropriate action if Maryland does not
implement its own bacterial regulations. Such action
could include withholding Section 106 funding, elevating
the issue to the Administrator, or disapproving the
State's Impaired List,
in
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Send written notices to each State in the Region clearly
identifying the inadequate standards.
Coordinate with EPA Headquarters to promulgate
standards if States do not correct the inadequacies
identified in the written notices.
Initiate action to identify what toxic pollutant water
quality criteria are necessary, if the 1999 Maryland
Triennial Review fails to do so.
Request the Administrator of EPA to consider initiating
Clean Water Act 303(c)(4)(B) actions against Delaware,
the District of Columbia, Pennsylvania, and Virginia.
Withhold a portion of Section 106 funding from any
State whose Triennial Review is overdue.
Require States receiving grants under Section 106 of the
Clean Water Act to develop and/or update Monitoring
Strategies and Water Quality Management Plans.
When necessary, withhold funds from States that
neglect to do so.
IV
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TABLE OF CONTENTS
EXECUTIVE SUMMARY
GLOSSARY
CHAPTER 1
INTRODUCTION 1
Objectives 1
Background I
Scope and Methodology 4
Prior Audit Coverage 6
CHAPTER 2
BACTERIA IN WATER NOT ASSESSED OR REPORTED 7
Conclusion 11
Recommendations 12
EPA Office of Water Response to the Draft Report 13
OIG Evaluation of Office of Water Response 14
Region III Response to the Draft Report 15
Maryland Response to the Draft Report 15
OIG Evaluation 16
CHAPTER 3
DEFICIENT STANDARDS WERE NOT CORRECTED 19
Deficient Maryland Standards 20
Deficiencies in Other States Within Region III 22
Region III Position 23
Conclusion 24
Recommendations 24
Region III Response to the Draft Report 24
Maryland Response to the Draft Report 25
OIG Evaluation 25
CHAPTER 4
MISSED OPPORTUNITIES TO CORRECT STANDARDS 27
Consequences of Late Reviews 29
Recommendations 30
Region III Response to Draft Report 31
Maryland Response to the Draft Report 31
OIG Evaluation 31
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CHAPTER 5
PLANNING DOCUMENTS NOT PREPARED OR UPDATED 33
Continuing Planning Process Documents 34
Water Quality Management Plans 34
Monitoring Strategy 34
Quality Assurance 35
Conclusion 36
Recommendations 37
Region III Response to Draft Report 37
Maryland Response to Draft Report 38
OIG Evaluation 39
APPENDIX A
Office of Water Response to Draft Report 41
Region III Response to Draft Report 51
Maryland Response to Draft Report 77
APPENDIX B
DISTRIBUTION 91
VI
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GLOSSARY
Anti-degradation
Policy
CFR
CPP
Criteria a
Designated Use
Discharger
DNR
E. coli
Encephalitis
Enterococci
Fecal coliform
Gastroenteritis
A policy to ensure water quality is conserved, maintained,
and protected.
Code of Federal Regulations.
Continuing Planning Process document.
Numeric values or narrative statements that describe the
quality needed to support a water body's designated use.
Criteria are to be established in State regulations for
chemicals, metals, bacteria, and other contaminants.
The use for a water body designated by State regulations
that include: protection of aquatic life and recreation (i.e.,
swimming, boating, or white water rafting) and may include
such uses as drinking water protection.
A person, company, or wastewater treatment plant that
releases pollution into a water body, usually in accordance
with a permit issued by EPA or a State Agency.
Maryland Department of Natural Resources.
Eschericia coli; one of the species of bacteria in the fecal
coliform group. Its presence is considered indicative of fresh
fecal contamination, and it is used as an indicator organism
for the presence of pathogens.
Inflammation of the brain.
A group of cocci bacteria that normally inhabit the intestines
of people and animals. They are used as indicators of fecal
contamination.
A class of bacteria found in the intestinal tract of warm-
blooded animals and people. Their presence is an indicator of
possible contamination by pathogens.
Inflammation of the lining of the stomach and the intestines.
Vll
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Impaired
MDE
Meningitis
DIG
Pathogen
Promulgate
Sanitary Survey
Standards
States in Region III
TMDL
Toxic Pollutants
A water body that does not fully support its designated use,
because its criteria have been exceeded.
Maryland Department of the Environment.
Inflammation of the three membranes that envelop the brain
and the spinal cord, especially as a result of infection by
bacteria or viruses.
Office of the Inspector General.
A bacterium or virus that causes disease.
To make known the terms of a new regulation or to put a
new regulation into effect.
An investigation to determine the source of contamination in
a water body.
Water quality standards consist of three elements: a
designated use, water quality criteria, and an anti-
degradation policy.
Maryland, Delaware, District of Columbia, Pennsylvania,
Virginia, and West Virginia,
Total Maximum Daily Load - how much pollution may be
added to a water body without impacting its designated use.
The 126 toxic pollutants listed in Section 307(A) of the Clean
Water Act. States are required to adopt specific numeric
criteria for these pollutants that are at least as protective as
EPA criteria recommendations, or provide a scientifically
defensible rationale for less protective criteria. EPA refers to
these as "priority" toxic pollutants.
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CHAPTER 1
INTRODUCTION
Objectives
Background
The objectives of our audit were to determine:
1. Whether Region III implemented effective procedures to
evaluate State water quality standards, monitoring, and
reporting.
2. Whether the State of Maryland implemented procedures
to:
4 Develop standards that will protect the State's
water quality,
4 Monitor the quality of State waters, and
4 Ensure reports on water quality are accurate,
complete, and useful to program management.
The Clean Water Act is the primary legislation addressing
water quality programs. The principal goals of the Act are
to:
* Restore and maintain the chemical, physical, and
biological integrity of the nation's waters,
f Achieve water quality that promotes protection and
propagation of fish, shellfish and wildlife, and
provides for recreation in and on the water.
Water quality standards provide the
foundation for accomplishing these goals.
These standards are laws or regulations
that States adopt to enhance the quality of
their water bodies and to protect the public health and
welfare. Water quality standards consist of three elements: a
designated use, water quality criteria, and an anti-
degradation policy.
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States classify their water bodies according to how the water
can be used. These "designated uses" include the protection
of aquatic life and recreation, i.e., swimming, boating, and
white water rafting and may also include the protection of
drinking water.
Once the designated use of a water body is determined, the
Act requires the State to develop water quality criteria for
that use. Water quality criteria identify the amount of
contamination that may be present in the water without
impacting the designated use.
EPA published Federal criteria that set numerical criteria for
103 toxic pollutants and approximately 38 other pollutants.
These restrictions are based on the effect the pollutants have
on the water's use. States must either adopt the Federal
criteria or develop their own scientifically defensible criteria
that are at least as protective.
The Clean Water Act also requires State water quality
standards to include an anti-degradation policy. Title 40,
Code of Federal Regulations (CFR) Part 131.12, requires
States to identify the implementation methods for this policy.
The purpose of an anti-degradation policy is to conserve,
maintain, and protect existing water quality, including water
bodies of exceptionally high quality such as those found in
National and State Parks.
Section 303(c)(l) of the Clean Water
Act requires each State, at least once
every three years, to hold public
hearings. The purpose of these
hearings is to review, and, as
appropriate, modify and adopt water quality standards. The
results of these reviews are then to be made available to the
Administrator of EPA.
Section 303(c)(4) of the Act stipulates that the Administrator
of EPA shall promptly prepare and publish proposed
regulations setting forth a revised or new water quality
standard:
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* If a revised or new water quality standard
submitted by a State ... is determined to be
inconsistent with the Clean Water Act, or
4 In any case where the Administrator determines
that a revised or new standard is necessary to meet
the requirements of the Act.
If a State fails to conduct these 'Triennial Reviews," the
Agency is empowered to "to take appropriate action" under
Section 303(c)(4)(B) of the Act.
Title 40 CFR Part 130.4 requires each
State to develop a monitoring program to
assess whether their water bodies meet
water quality standards. Such programs
generate information necessary to guide
management decisions and track environmental progress.
The monitoring programs must meet EPA's quality
assurance requirements. The programs must also identify
the water bodies to be tested, the frequency and types of
testing, and the entity to conduct the testing.
Section 305(b) of the Clean Water Act
requires each State to assess and report to
EPA every two years on the condition of all
their water bodies. In the Assessment
Report, the State classifies each water body
as either "fully supporting," "partially supporting," or "not
supporting" its designated use. EPA then combines all the
State reports into a national report. This report is sent to
Congress, and is used by the Agency to measure its
performance towards achieving clean and safe water.
Section 303(d) of the Clean Water Act requires each State to
prepare a prioritized Impaired List of water bodies that do
not "fully support" their "designated use." From this list the
States are required to develop "total maximum daily loads,"
which are allocations of how much pollution each
"discharger" will be allowed to release into each water body.
EPA awards grant funds to States under
Section 106 of the Clean Water Act. These
grants subsidize a wide range of water
Report No. E1HWF7-03-0160-910018
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quality program activities, including: developing and
reviewing standards; monitoring and assessing the water;
and, preparing the reports and documents required under the
Act.
Federal Funds Awarded Under Section 106
Maryland
Delaware
District of
Columbia
Pennsylvania
Virginia
West Virginia
1995
$1,295,030
763,770
661,418
3,346,399
1,943,839
1,032,619
1996
$1,269,656
788,863
641,580
3,245,513
1,863,883
991,144
1997
$1,269,656
718,275
664,321
3,299,768
1,863,883
991,144
1998
$1,452,123
O1
483,362
3,651,767
1,993,427
1,293,675
Total
$5,286,465
$2,270,908
$2,450,681
$13,543,447
$7,665,032
$4,308,582
$35,525,115
1. Beginning in 1998, Delaware's Section 106 funds were included in its Performance Partnership Grant
and therefore are not specifically identifiable.
Scope and
Methodology
We performed this audit according to the Government
Auditing Standards (1994 Revision) issued by the
Comptroller General of the United States as they apply to
program audits. The audit included tests of the program
records and other auditing procedures we considered
necessary.
We began our review with a survey on August 13, 1997. As a
result of the survey we began an in-depth review on
February 2, 1998. We completed our audit fieldwork on
September 15, 1998.
For simplicity purposes we refer to the District of Columbia
as a "State," because under the Clean Water Act, the District
has the same responsibilities and is subject to the same
requirements as a State.
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We concentrated our review on the State of Maryland's water
quality program. However, as various issues arose, we
determined if programs in other States within Region III had
similar discrepancies.
Maryland's water quality program responsibilities are
divided between the Maryland Department of the
Environment (MDE) and the Maryland Department of
Natural Resources (DNR). MDE fulfills most of the
regulatory responsibilities, including reviewing water quality
standards, conducting Triennial Reviews, preparing the
Impaired List of water bodies, and developing the "total
maximum daily loads." DNR performs the majority of the
water quality monitoring responsibilities and prepares the
Assessment Report sent to EPA.
We reviewed the Clean Water Act, the CFR, the Water
Quality Standards Handbook, Guidance for Section 106 of
the Clean Water Act, Monitoring Strategy Guidance,
Guidelines for Preparation of 1996 State Water Quality
Assessments (Section 305(b) Reports), and Maryland's Laws
and Regulations applicable to its water quality program.
To accomplish our objectives, we reviewed documents and
interviewed officials at: MDE, DNR, Region Ill's Water
Protection Division and Environmental Services Division,
and EPA's Office of Water.
We also reviewed correspondence between EPA and the
States within Region III applicable to water quality
standards, planning documents, and reports required under
Sections 305(b) and 303(d) of the Clean Water Act.
We selected a sample of 20 water bodies in Maryland to
evaluate the State process for sampling, assessing, and
reporting the water quality. We judgmentally selected this
sample to obtain a mixture of geographic location, size, and
reported water quality.
We reviewed internal controls and procedures specifically
related to our objectives. Although we used information from
Region Ill's Permit Compliance System, we did not review
the controls associated with the input and processing of
information into this system. We also reviewed the Region's
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Water Protection Division's Annual Reports on Internal
Controls for fiscal years 1994 through 1997, that were
prepared to comply with the Federal Manager's Financial
Integrity Act. None of the issues cited in this audit were
disclosed in these reports.
Due to the complexity of some water quality issues, we
obtained technical assistance from the OIG Engineering and
Science Staff. This technical assistance included: (1) a
comparison of Maryland's water quality criteria to EPA's
criteria; (2) an analysis of data from Maryland's monitoring
stations; and, (3) a review of the pollutants identified in the
Permit Compliance System as being contained in Maryland's
pollution discharge permits.
We issued the draft report on November 25, 1998. Maryland
submitted its response on February 2, 1999. Region III
submitted its response on February 23, and EPA's Office of
Water submitted its response on March 24, 1999. We
changed the draft report where necessary, but our overall
positions remained unchanged. We held an exit conference
with Region III on March 16, 1999, with Maryland officials
on March 24, and with EPA's Office of Water on March 25,
1999. The responses and our evaluation of these responses,
are summarized at the end of Chapters 2 through 5 and
provided in their entirety in Appendix A.
Prior Audit Neither the OIG nor the U.S. General Accounting Office
Coverage issued any reports related to water quality standards,
monitoring, and reporting for any State in Region III.
However, on January 15,1997, Virginia's Joint Legislative
Audit and Review Commission issued a comprehensive report
on water enforcement in the State.
The OIG issued a report on Missouri's water quality on
March 31,1998, and is currently auditing the programs of
Arkansas, Colorado, Mississippi, New Jersey, Ohio, and
Oregon. The OIG issued a report on March 27,1997, entitled
Region III Superfund Field Sampling Activities, which
identified non-compliance with the requirement to prepare a
Regional Quality Management Plan. Although this Plan has
since been developed, our audit identified weaknesses in its
implementation. See Chapter 5 for additional details.
6
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CHAPTER 2
BACTERIA IN WATER NOT ASSESSED OR REPORTED
Elevated bacterial levels can be hazardous to people using
water for recreational activities, such as swimming or water
skiing. Bacteria can cause illnesses including sore throats,
ear infections, diarrhea, gastroenteritis, meningitis, and
encephalitis. The Clean Water Act requires EPA to develop
and publish criteria for assessing water quality based on the
latest scientific knowledge. States are then to adopt either
these criteria, or criteria that are at least as protective as
EPA's. If a State does not adopt such criteria, then the Clean
Water Act requires EPA to write a regulation to supersede
the State's regulation and ensure that the more protective
criteria are used to assess water quality.
In 1986, EPA published its Ambient Water Quality Criteria
for Bacteria, which approved Enterococcus and E. coli as
bacteriological indicators of harmful pathogens. However, as
of 1998, Delaware is the only State within Region III to
adopt either of these two approved Federal criteria. The
remaining States use fecal coliform to assess their water
quality. This occurred because the Agency implicitly allowed
States to use the less protective criterion to assess the
bacteriological quality of their water bodies. As a result,
water bodies with harmful contamination may remain
undetected and unreported, and the public may be
unknowingly exposed to harmful bacteria.
In addition to not adopting the Federal criteria, the State of
Maryland did not implement its own criterion, or follow EPA
guidance when assessing and reporting water bodies
impaired by bacteria.
The following chart shows the water quality criterion being
used by each State within Region III, and whether the
criterion was as protective as EPA's.
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STATE
Delaware
District of Columbia
Maryland
Pennsylvania
Virginia
West Virginia
CRITERIA
USED BY STATE
Enterococcus
Fecal Coliform
Fecal Coliform &
Sanitary Surveys
Fecal Coliform
Fecal Coliform
Fecal Coliform &
Best Professional
Judgement
AS
PROTECTIVE
Yes
No
No
No
No
No
Whether coincidental or not, it is interesting to note that
Delaware, which did adopt a Federal criterion, reported 84
percent of its assessed water bodies as impaired by bacteria,
whereas Maryland, which uses fecal coliform, reported less
than 1 percent of its assessed water bodies as impaired.
' " '£
Assessed Miles
Impaired Miles
Percent Impaired
DELAWARE
651
548
84%
MARYLAND
17,000
5
.03%
MARYLAND
The Clean Water Act requires each state to assess and report
on the condition of its water bodies every two years. To fulfill
this requirement each state submits to EPA an Assessment
Report and an Impaired List. The Assessment Report
describes the quality of all water bodies, including whether or
not they are safe. This report is also made available to the
public. The Impaired List prioritizes for EPA those water
bodies classified as unsafe. The Impaired List is especially
important because it identifies the bodies of water for which
"total maximum daily loads" (TMDLs) must be developed in
order to clean up the contamination.1 Accordingly, the Clean
1. The TMDLs restrict the amounts of pollution that each discharger can release into a water body, and
still allow it to be safe. 8
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Water Act gives EPA the final approval authority over each
State's Impaired List.
In Maryland, two state agencies use different interpretations
of the State's criteria to determine if water bodies are
impaired. However, neither interpretation implements the
State's criteria as written, resulting in insufficient data to
document impairments. Moreover, there was a difference of
opinion between the State and Region III as to what
constituted an impaired water body. As a result, Maryland's
Impaired List did not include 185 water bodies that had
elevated bacterial levels. Furthermore, 62 of these 185 water
bodies were not identified as impaired on Maryland's
Assessment Report.
Maryland s Water
Quality
Standard
(a)
According to Maryland's water
quality standard, a body of water
will be presumed contaminated:
If the fecal coliform density exceeds a log mean of
200 per 100 milliliters, based on a minimum of at
least five samples taken over any 30-day period;
(b) If 10 percent of the total number of samples
taken during any 30-day period exceed 400 per
100 milliliters; or,
(c) Except when a sanitary survey approved by
the Department of the Environment discloses
no significant health hazard, (a) and (b) does
not apply.
DNR Inadequately
Sampled
Maryland's Department of
Natural Resources (DNR) only
considers a water body as
impaired if: (1) it is a
"permitted" beach closed by a
local health department (in its 1996 Assessment Report DNR
reported 25 such beaches as impaired); or, (2) a sanitary
I
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survey2 confirms the impairment. But DNR reported no
water bodies as impaired due to elevated bacterial levels,
despite the fact that, according to other monitoring data
submitted by Maryland to Region III, there were an
additional 62 water bodies impaired due to elevated bacterial
levels.
During the audit, DNR personnel explained that they did not
perform sanitary surveys for elevated monthly bacterial data
because: (1) fecal coliform are not harmful bacteria, but
rather only an indicator of harmful bacteria; and, (2) any
bacterial contamination probably came from animal waste
which DNR assumed is harmless, rather than human waste
which is known to be harmful. We disagree with both of
DNR's explanations.
First, although fecal coliform may not be harmful to humans,
they are called an indicator because they are typically found
in the presence of harmful bacteria and viruses.
Furthermore, Maryland's own regulations establish fecal
coliform as the criterion to be used to measure water quality.
Second, we dispute the assumption that any bacterial
contamination must automatically come from an animal
rather than a human source. The only fact known at this
point is that bacterial contamination exists, not where it
originated.
In any event, Maryland did not conduct sanitary surveys
(except for permitted beaches and for the shellfish sanitation
program). According to DNR, such surveys are expensive.
However, each year between 1995 through 1997, Maryland
performed 5000 sanitary surveys to ensure that people did
not get sick from eating shellfish. Accordingly, we believe
there is justification for the extra expense of an additional 62
sanitary surveys, at the locations where elevated bacterial
levels were detected.
IMDE Inadequately I
Sampled I
Maryland's Department of the
Environment (MDE) considers a
water body as impaired by
bacteria only if five samples
taken over the course of a month
2. A sanitary survey is an investigation, to determine how fecal coliform bacteria entered a water body.
10
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indicate elevated bacterial levels (i.e., paragraph (a) of
Maryland's water quality standards). Using this
measurement, MDE reported 51 water bodies as impaired by
bacteria on its 1998 Impaired List, despite the fact that,
according to other monitoring data3 submitted by Maryland
to Region III, there were 185 additional water bodies
impaired due to elevated bacterial levels. This discrepancy
occurred because Maryland does not routinely follow its own
standard, i.e., to take five samples from a water body over
the course of a month. Rather, it usually takes nine to twelve
samples per year, usually one each month.
Region III was aware that MDE had not included
contaminated water bodies on its Impaired List. On April 17,
1998, the Region notified MDE of 193 water bodies which
should be added to the list because of bacterial
contamination. However, when MDE asserted that there
was insufficient data for the vast majority of the water bodies
to be added to the list, the Region consented with MDE's
promise to do additional testing. We disagree with this
decision. We believe the Region should have insisted that
185 of the 193 water bodies be listed as impaired for bacteria4
until MDE performed the additional testing as promised. In
light of the fact that Maryland does not routinely follow its
own standard, we do not agree that insufficient data should
have been accepted as a valid excuse.
Conclusion Elevated bacterial levels can be hazardous to people using
the water for recreational activities. It can cause various
illnesses ranging from sore throats to meningitis or
encephalitis. The Clean Water Act requires EPA to develop
criteria for assessing water quality and requires the States to
adopt these criteria, or criteria that are at least as effective.
Twelve years has elapsed since EPA revised its bacterial
criteria, but only one state within Region III, Delaware, has
adopted the approved criteria, which is based on the latest
scientific knowledge. The District of Columbia, Maryland,
Pennsylvania, Virginia, and West Virginia did not. Finally,
in lieu of adopting the Federal bacterial criteria, the State of
3. Other data includes MDE fecal coliform data from STOrage and RETrleval System (STORED, 1995
Maryland Biological Stream Survey data, the 1996 Assessment Report (305b report), and the "Water Body
System" database.
4. We concur that 8 of the 193 water bodies should not have been listed.
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Maryland professed to follow its own. But, it did not do so.
Consequently, Maryland's reports to EPA understated the
number of water bodies with elevated bacterial levels, a
condition that will delay the development of remedies to
curtail contamination.
Recommendations We recommend that the Assistant Administrator for Water
work to ensure that:
2.1 If States do not amend their water quality standards to
include the Agency's 1986 Ambient Water Quality
Criteria for Bacteria, appropriate action is taken to
resolve the deficiency.
We recommend the Region III Administrator:
2.2 Ensure that Maryland completes its 1999 Triennial
Review and resolves all standards issues, including
bacteria.
2.3 Ensure that Maryland implements its bacterial
standards as written. Specifically,
(a) DNR should either not require a sanitary
survey to confirm contamination, or
perform the surveys whenever testing
reveals elevated bacterial levels.
(b) MDE should follow Maryland standards
as written and assure that five samples
be collected in a thirty-day period for
making decisions to add water bodies to
the Impaired List.
2.4 Take appropriate action if Maryland does not implement
its own regulations. Such actions could include
withholding Section 106 funding, elevating the issue to
the Administrator, or not approving the State's
Impaired List.
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EPA Office of Water Response to the Draft Report
Background
The fecal coliform bacteria enumeration test was developed in the 1960s as a
replacement for the total coliform test in sewage and in sewage-polluted ambient
water. It was shown to be more specific to warm-blooded animal fecal waste than
total coliform. As a result, the presence of fecal coliform bacteria was the indicator
selected by the Environmental Protection Agency (EPA) and its predecessor Agency
and published as part of the 1968 Water Quality Criteria and the 1976 Quality
Criteria for Water. Fecal coliform is also designated a conventional pollutant in
Section 304(a)(4) of the Clean Water Act. Following the enactment of the 1967 and
1972 Federal water pollution control acts and their requirements for water quality
standards adoption by the States, the use of the fecal coliform test by the States was
almost universal.
EPA's seminal studies of enteric disease in recreational swimmers in the 1970s
were the first such studies to use epidemiological techniques to statistically
demonstrate which bacterial indicators provide correlation with gastroenteritis
incidence. These studies used new laboratory methods to measure Escherichia coli,
the coliform bacteria always present in warm blooded animal feces, and enterococci,
a small subgroup of 4 species which, while within the much larger fecal streptococci
group, are virtually always found in warm blooded animal feces. Statistically
significant correlations were determined and criteria developed that were based on
swimmer illness rates as a function of indicator bacterial densities in ambient
waters -- that is, on a risk basis. Moreover, it was found that fecal coliform, while a
valid indicator of the presence of fecal material, did not correlate with swimmer
illness rates. The 1986 criteria document used this research to present criteria that
were roughly equivalent in stringency to the previously recommended fecal coliform
criteria.
EPA encouraged the States to change to the new indicators to take advantage
of their improved ability to base decisions on swimmer illness risks. For example,
beginning with the Federal Register Notice announcing the availability of the
criteria document that encouraged quick State adoption (51 FR 8012, March 7,
1986), to a more recent letter (January 13,1997) from the Assistant Administrator
for Water urging States to adopt the new indicators (copy attached). While a
number of States have done so, more than two-thirds have not. The States that
have not adopted the new criteria have cited a number of perceived problems.
Among these are the following: the drinking water program still uses total coliform
and fecal coliform (E. coli is now an option, however), making additional demands
on laboratories; the enumeration methods for E. coli and enterococci are not in the
Agency's methods at 40 CFR Part 136 and thus may pose problems if used in
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NPDES permits; and they have long records using fecal coliform and do not wish to
change indicators.
EPA's Current Plans
OW agrees with the concerns expressed in the OIG's draft report. EPA
recognizes that it is important for States to adopt microbiological water quality
criteria that adequately protect designated uses. For these reasons, the President
included specific provisions concerning beach protection in the Clean Water Action
Plan that he issued in February 1998. In response to the Action Plan, EPA recently
completed an Action Plan for Beaches and Recreational Waters that includes a
renewed commitment to encouraging State adoption of updated criteria to protect
beaches. OW will provide OIG with a copy of this Action Plan as soon as copies
have been printed. In the Action Plan, EPA commits to several steps in the near
future regarding water quality criteria. These steps include conducting a literature
review and analysis to verify the continuing scientific soundness of the 1986
criteria; notifying the States of EPA's intention to make a finding that use of fecal
eoliform criteria alone will not support the primary contact designated use
(presuming that position is justified by the review), and initiate a Federal
promulgation to impose the 1986 E. coli and/or enterococci criteria in addition to or
in place of outdated fecal conform criteria where necessary. EPA is also committed
to promulgating the enumeration methods for E. coli and enterococci into 40 CFR
Part 136 prior to any Federal promulgation for a State.
Office of Water Summary
OW believes that EPA's planned actions described above will achieve the OIG's
recommendations on a reasonable time schedule. At the completion of the Clean
Water Action Plan's and the Beach Action Plan's measures for beach protection, all
of the States will have the recommended bacterial indicators in place. At that point
all of the States will be capable of using E. coli or enterococci for purposes of section
305(b) reporting, and the draft OIG report's concern about State reporting of
bacterial impairments will be moot.
OIG Evaluation of Office of Water Response
As explained in the Office of Water response, the fecal coliform bacteria
enumeration test was developed in the 1960's. EPA studies of enteric disease in
swimmers in the 1970's using E. coli and Enterococci found that fecal coliform did
not correlate with swimmer illness rates. Consequently, in 1986 the Agency
encouraged the States to adopt these new indicators to take advantage of their
improved ability. In response to a Clean Water Action Plan issued by the President
in 1998, EPA completed an Action Plan for Beaches and Recreational Waters, and
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plans to initiate a Federal promulgation to impose the 1986 E. coli and/or
Enterococci criteria where necessary.
During the exit conference, the Office of Water provided an excerpt from the Action
Plan for Beaches and Recreational Waters, in which it was stated that:
Where a State does not amend its water quality standards to
include the 1986 criteria, EPA will act under Section 303(c) of
the Clean Water Act to promulgate the criteria with the goal of
assuring that the 1986 criteria apply in all States not later than
2003.
The issuance of this plan should achieve the intent of our recommendation. Thus,
no further action is necessary.
Region III Response to the Draft Report
The Region concurred that there were inconsistencies in the bacteria criteria
adopted by Region III States, and that EPA has not taken formal action to
disapprove States' standards when Enterococcus and E, coli were not adopted to
replace fecal colifbrm criteria.
The Region believes that State Triennial Reviews, rather than Impaired Lists, are
the appropriate vehicle for disputing the appropriateness of specific State water
quality standards. Moreover, the Region asserted that it is appropriate for a State
to base its Impaired List on its interpretation of its own standards, i.e., Maryland's
explanation that because fecal bacteria measurements are known to be highly
variable, no less than five samples per month be taken.
The Region agreed that follow-up is necessary to assist Maryland in providing
resources for additional testing.
The Region did not address our recommendation that it issue a deficiency notice to
Maryland based on how the State implements its standards regarding DNR
performing sanitary surveys. That is why we reiterated this recommendation in the
final report. Also, we added a similar recommendation regarding MDE coDecting a
sufficient number of samples to add water bodies to the Impaired List.
Maryland Response to the Draft Report
Maryland agreed that the bacteriological criterion needs to be revised and that
monitoring for bacteria needs to be modified to better implement the standard.
Maryland disagreed that its standards are less protective than those recommended
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by EPA, and that additional waters should be added to the Impaired List. The
response contained a table showing the specific water bodies that were not listed
because "there is insufficient data to determine a violation of water quality." (See
Appendix A). "However, through the current Triennial Review, Maryland will
explore the feasibility of adopting a fecal coliform standard using the Enterococcus
and E. coli indicators in primary contact waters."
Regarding implementing its own standards, Maryland agrees that it does not do
statewide sanitary surveys. However, local health Departments do conduct the
surveys, both for enforcement of bathing beach standards and to survey needs with
respect to septic systems.
Based on comments received from EPA in its review of the 1998 Impaired List,
Maryland has agreed that a review of the bacterial regulations and bacterial
sampling protocols is warranted and will be pursued in the ongoing Triennial
Review process.
OIG Evaluation
Our finding acknowledged that 25 "permitted" beaches and five miles of other water
bodies were listed as impaired on the Assessment Report. However, these 25
beaches represent only a small portion of the State's water bodies. Our concern is
about the other 62 water bodies, which monitoring data submitted by the State
indicated were also impaired. These water bodies were not included on the
Assessment Report because there was insufficient data to confirm impairment. As
explained in our finding, this lack of information arose because the State did not
implement its own standards, i.e., DNR did not take the required number of
samples and MDE used this lack of data as a reason to not report impairments.
That is why we are recommending that the Region take other actions in the future
such as withholding Section 106 funding, elevating the issue to the Administrator,
or not approving the State's Impaired List if Maryland continues to not implement
its own bacterial standards.
In our draft report recommendations, the OIG gave the Region the option to either
rescind the approval of the 1998 Impaired List, or to assure that the additional
monitoring promised by Maryland is promptly carried out. We do not agree with
the Region that the Impaired List is not a proper vehicle to dispute the
appropriateness of specific state water quality standards. Inadequate standards
(and in this case improperly implemented standards) undermine the CWA's goal of
obtaining water quality which provides for the protection of recreation in and on the
water. We also do not agree that insufficient data is an appropriate justification to
exclude water bodies from listing the waters as impaired, especially when other
monitoring data shows impairment.
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We agree the Triennial Review process provides EPA with the authority to rectify
inadequate state water quality regulations. However, it should be pointed out that
Maryland has not completed any Triennial Reviews since 1990, with no
consequences from EPA. We understand from the responses that Maryland agrees
it needs to address the issue of insufficient data to list water bodies as impaired,
and that the Region agrees that it has to follow up on this issue. We also
understand that Maryland has just begun a 1999 Triennial Review. To ensure that
Maryland has sufficient data to list water bodies, we believe the Region should help
the State address this issue and follow its standards as written.
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CHAPTER 3
DEFICIENT STANDARDS WERE NOT CORRECTED
Water quality standards in Maryland, Delaware,
Pennsylvania, Virginia, West Virginia and the District of
Columbia were inadequate in 1998, even though some
deficiencies were identified as far back as 1990.
Consequently, State standards do not protect the waters in
Region III as intended by the Clean Water Act, and the
Agency risks being sued for not promulgating adequate water
quality standards.
This occurred because Region III did not fully use its
authority, or fulfill its responsibility, to ensure that deficient
standards were corrected. Specifically, Region III did not
notify States of their deficiencies, or elevate these issues to
the EPA Administrator, who then would have had the
authority to promulgate adequate standards. Despite the
longstanding deficiencies, we noted only one instance where
the Region issued a formal deficiency notice. Also, there was
only one instance where the Region elevated a standard to
the EPA Administrator for promulgation, and this occurred
only because of a court order resulting from a lawsuit filed
against the Agency by an environmental group.
Water quality standards consist of three elements:
(1) A "designated use" - protection of aquatic life
and recreation, and may include drinking
water.
(2) The "water quality criteria" necessary to
protect the designated use.
(3) An "anti-degradation policy" to ensure
that water quality is conserved,
maintained, and protected.
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Deficient
Maryland
Standards
Chapter 6 of EPA's Water Quality Standards Handbook
outlines the process for promulgating new standards. The
Handbook stipulates that although only the EPA
Administrator may actually promulgate the standards, the
Regional Offices also have a major role, i.e., to notify the
States of deficiencies, or if necessary elevate the issue to the
EPA Administrator.
Three deficiencies in Maryland's water quality standards
remained uncorrected since 1990 (the date of the last
completed Maryland Triennial Review). These deficiencies
relate to: the criteria for toxic pollutants; and, anti-
degradation policy and procedures.
The first deficiency regards the lack of
adequate numeric water quality criteria
for toxic pollutants. A numeric criterion
is the level of contamination which may
be present in the water body without
impacting its designated use. Section
303(c)(2)(B) of the Clean Water Act
requires the States to adopt criteria for
all toxic pollutants pursuant Section 307(a)(l) for which EPA
has published criteria under Section 304(a), the discharge or
presence of which in the affected waters could reasonably be
expected to interfere with those designated uses adopted by
the State. Agency guidance proposed three options to meet
this requirement. Maryland selected the option which only
required it to adopt numeric criteria for the toxic pollutants
listed in Section 307(a). According to EPA's database of
permits issued by Maryland to its dischargers, there are 62
such toxic pollutants. However, although Maryland requires
its dischargers to test for these pollutants, its standards
provide numeric criteria for only 20 of these 62 pollutants.
According to Maryland Department of the Environment
personnel, the State chose not to adopt the EPA criteria for
the remaining 42 pollutants because it: (a) questioned the
science EPA used to develop the criteria; and, (b) feared being
sued by dischargers if the science proved to be invalid. These
misgivings notwithstanding, the fact remains that the Clean
Water Act mandates that each State either adopt criteria as
Missing
Criteria for
Toxic
Pollutants
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Incorrect
Criteria for
Toxic
Pollutants
protective as EPA's, or develop its own scientifically
defensible criteria.
The second deficiency is that Maryland's
numeric criteria for 15 metal pollutants
are set at incorrect levels. Specifically,
the State set criteria at numeric levels
that EPA recommends for "total
recoverable" units, but then adopted
these numeric levels as "dissolved" units.
The net effect is that the numeric levels
set by Maryland may be less stringent than the levels
currently recommended by EPA. Consequently, the State's
standards may allow more pollution from metals to be
present in the water than EPA has determined is appropriate
to ensure aquatic life is adequately protected.
The third deficiency in Maryland's
standards relates to its anti-degradation
policy. In accordance with Title 40 of the
Code of Federal Regulations (CFR)
131.12, each State is required to develop
such a policy and identify methods to
implement it in order to ensure that
water quality improvements are conserved, maintained, and
protected. In particular, a State's anti-degradation policy
and implementing procedures must maintain and protect
high quality waters which constitute an Outstanding
National Resource, such as waters of National and State
parks and wildlife refuges. In 1990, Region III conditionally
approved Maryland's standards related to its anti-
degradation policy, with the understanding that the State
would revise its policy to include provisions for Outstanding
National Resource waters and develop the required
implementation procedures by January 1, 1991. However, as
of 1998, Maryland has fulfilled neither of these conditions.
Maryland Summary
Over an eight-year period, the Region has periodically
reminded Maryland personnel about deficiencies in their
water quality standards requiring attention. During our field
visit, Maryland personnel referred to the Region's current
Anti-
degradation
Policy
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Deficiencies in
Other States
Within Region III
letter as "EPA's wish list," because it neglected to prioritize
or otherwise highlight which deficiencies should be remedied
first. Region III personnel explained that the reminder
letters were somewhat "nebulous"; they referred to "goals"
that EPA "preferred" to see added to the standards, rather
than to deficiencies that required correction. Consequently,
we believe that the Region should send clearly written
deficiency notices, separate from any letters requesting the
fulfillment of optional goals.
In 1993, EPA identified a number of
deficiencies within Delaware's water
quality standards program. After five
years of discussion between the State and
the Region, many of the deficiencies still
remain unconnected. In April 1998, the Region notified the
State that it intended to recommend that the EPA
Administrator promulgate replacement standards if the State
did not make recommended corrections. According to
regional personnel, Delaware agreed to hold public hearings
in October 1998 regarding its deficient regulations. However,
as of March 1999, it has yet to schedule the hearings, and
EPA has taken steps to promulgate some of the deficient
standards.
Since 1994 the District of Columbia's
water quality standards contained many
deficiencies. In 1998, the Region reviewed
the District's draft revisions to their
standards and concluded that several, but
not all, of the items had been corrected.
However, the Region allowed four years to elapse, and the
District's standards have yet to be finalized.
In 1994 Region III determined that
Pennsylvania's standards were
inadequate for two reasons. After two
years and a lawsuit filed by an
environmental group, EPA finally
corrected one of these deficiencies by promulgating the
required standard. However, the remaining deficiency has
yet to be corrected.
District of
Columbia
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Since February 1990, Virginia's water
quality standards have included criteria
for bacteria that are less protective than
EPA's published level. This is significant
because an incorrect standard may allow
elevated bacterial levels (a human health threat) to go
unreported and unconnected.
In 1993 the Region identified many
deficiencies with West Virginia's
standards. In 1995, the State submitted
its Triennial Review package which
enabled the Region to approve some of the
revised standards. On July 14, 1998,
West Virginia submitted a new Triennial Review package.
As of February 1999, the Region has completed its review of
this package and is awaiting EPA Headquarters review and
concurrence.
Region III Regional personnel offered various explanations why
Position deficiencies in standards remained uncorrected including:
4 The belief that it was better to afford States the
opportunity to correct their own standards.
* The reluctance to encourage changes in a political
environment that may have resulted in the
elimination of some State standards that were more
aggressive than EPA's.
* A hesitancy to take action against States within
Region III when similar deficiencies were being
overlooked in other EPA Regions.
4 The opinion that in some instances, e.g., anti-
degradation implementation procedures, EPA
Headquarters would not know what to promulgate.
4 The Regions and EPA Headquarters lack personnel
'and funding necessary to promulgate regulations
when a State fails to do so.
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Conclusion Deficient State water standards within Region III remained
uncorrected for as long as eight years. In our opinion, the
primary reason for this situation was because the Region did
not fully use its authority or fulfill its responsibility to ensure
that deficient standards were corrected. Notwithstanding
the explanations provided by regional personnel, we do not
believe they justify leaving standards uncorrected for years.
Accordingly, the Region needs to take appropriate actions to
obtain compliance by the States to better protect bodies of
water as intended in the Clean Water Act. Such actions
would include preparing clearly written notices to the States
and elevating issues to the EPA Administrator if a State fails
to correct inadequate standards.
Recommendations We recommend the Region III Administrator:
3.1 Send clearly written notices to States identifying
inadequate standards.
3.2 Coordinate with EPA Headquarters to promulgate
standards if States do not correct the inadequacies
identified in the written notices.
3.3 Initiate action to identify what toxic pollutant water
quality criteria are necessary, if the 1999 Maryland
Triennial Review fails to do so.
Region III Response to the Draft Report
EPA Region III agrees that the Region III States have not been timely in
completing Triennial Reviews and, as a result, deficiencies now exist in standards
that were previously approved. Also, EPA agrees that there are State standards
which were disapproved for which EPA Region III has not pursued Federal
promulgation by the Administrator. EPA Region III is aggressively pushing the
States to move to correct outstanding disapprovals and to initiate Triennial
Reviews. Triennial Reviews have been completed in Virginia and West Virginia,
with the approval/disapproval determinations pending.
The draft report noted that EPA Region III did not elevate these issues to the EPA
Administrator, who would then have the authority to pursue Federal promulgation,
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Report No. E1HWF7-03-0160-910018
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although not the obligation. EPA Region III agrees with the importance of notifying
the States when changes are needed and also to selective use of Federal
promulgation where other efforts have failed.
Maryland Response to the Draft Report
In its response, Maryland offered several arguments disputing that it needed
additional criteria for toxic pollutants. These arguments included, just because a
permit requires monitoring for a pollutant, it does not mean the pollutant is always
present. Also, the presence of a toxic pollutant in a facility's discharge does not
automatically require adoption of a criterion. Instead, professional judgement must
be applied to make that determination and be confirmed by monitoring. Moreover,
a pollutant may be included in a permit as a "technology-based limit" required by
Federal guidelines.
Maryland also disputed that it should have corrected the criteria for metal
pollutants because EPA published its "interim final rule" in 1995 and its "most
recent final guidance on metal conversion factors" in 1998. Given these facts
Maryland asserted that we were premature in concluding that its metals criteria is
deficient.
OIG Evaluation
On June 25, 1992, the Region notified Maryland that its 1993 Triennial Review
needed to review additional or revised water quality criteria for toxic pollutants. In
a follow-up meeting on October 21, 1992, the Region again noted that the State
needed additional or revised numeric criteria for toxic pollutants. This same issue
resurfaced as recently as March 2, 1998, when Region III requested the State to
complete its long overdue Triennial Review.
We reviewed Maryland's arguments for not adopting EPA's criteria, or developing
its own criteria for the 42 pollutants discharged into Maryland waters. We agree
the State made several valid points regarding why pollutants are listed in permits.
However, Maryland fails to categorically confirm that these toxic pollutants are not
affecting water quality, or are not present at a level to warrant concern. This is the
reason why we added a recommendation for the Regional Administrator to ensure
that this issue is resolved during the 1999 Triennial Review.
Regarding Maryland's metal criteria being deficient, our position remains
unchanged. Admittedly EPA took some time to formally publish its final guidance
on metals. However, our conclusion that the State's metal criteria is deficient is
hardly premature, in light of the fact that Region III had arrived at the same
conclusion in 1990, nine years earlier.
U.S. EPA Headquarters Library 25
Mail code 3201 Report No. E1HWF7-03-0160-910018
1200 Pennsylvania Avenue NW
-------
Because Maryland agreed it would address the designation of Outstanding National
Resource Waters during its 1999 Triennial Review, no further action is needed for
that issue.
During our exit conference, Maryland MDE officials asserted that the State is
addressing the toxicity issue with Whole Effluent Toxicity testing of permitted
effluents, and an ambient toxicity program, funded by EPA's Chesapeake Bay
Program, which monitors the tidal portion of the Bay and its tributaries. This
notwithstanding, we still believe that the ambient toxicity testing program must be
expanded to include non-tidal waters and to provide more frequent sampling.
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CHAPTER 4
MISSED OPPORTUNITIES TO CORRECT STANDARDS
In addition to adopting water quality standards into law, the
Clean Water Act requires each State to: (a) hold public
hearings at least every three years to review the standards;
and, (b) submit the results of these reviews to the
Administrator of EPA. The purpose of these "Triennial
Reviews" is to determine the need for additional standards or
for the revision of existing standards. Thus if hearings are
not held and standards not reviewed, the public and EPA
have less assurance as to the adequacy of State water quality
standards. At the time of our audit, West Virginia was the
only State within Region III to have completed its Triennial
Reviews. The other States did not complete their reviews
because the Agency has not enforced its authority under the
Clean Water Act.
The following table shows when each State conducted its last
review, when its next review was due, and how many years
the review is overdue as of 1998.
TRIENNIAL REVIEWS
STATE
Maryland
Delaware
District of Columbia
Pennsylvania
Virginia
West Virginia
LAST
REVIEW
April 1990
February 1990
March 1994
March 1994
May 1992
August 1995
REVIEW
DUE
April 1993
February 1993
March 1997
March 1997
May 1995
August 1998
YEARS
LATE
5
5
1
1
3
0
We were given various reasons why States neglected to hold
the public hearings and review their water quality standards.
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Region III personnel informed us that Triennial Reviews are
perceived as a low priority, EPA has a policy to work as
"partners" with the States, and as long as a State makes
"good progress," the Region will not elevate the issue to EPA
headquarters.
In order to fulfill its requirements, the
State needed to: (a) notify the public of the
review and solicit suggestions for revisions;
(b) review its standards for specific Clean
Water Act requirements; (c) hold public
hearings on the proposed revisions; and, (d) submit the
revisions to EPA for approval. Region III concluded that
Maryland had missed both its 1993 and its 1996 Triennial
Reviews. However, Maryland asserted it fulfilled the 1993
requirement because: (a) all State regulations, including
water quality standards, are continuously open for public
comment; (b) the State is required to review and evaluate all
regulations every eight years; and, (c) Maryland submitted
revised standards to Region III as a result of lawsuit
negotiations with six industries.
We concur with the Region that Maryland did not fulfill its
Triennial Review requirements. The continuous public
comment period does not meet the Clean Water Act
requirement for public hearings on all State's water quality
standards. In addition, the eight-year regulatory review
clearly does not meet the three-year requirement of the Act.
Finally, the revisions submitted by Maryland to EPA only
addressed the standards revised as a consequence of the
lawsuit. The Clean Water Act requires that all water quality
standards be reviewed.
Over a five-year period (1994 through 1998), Maryland
repeatedly agreed to conduct the 1996 Triennial Review, as
part of activities funded by the grant EPA awarded to the
State under Section 106 of the Clean Water Act.
Nonetheless, even though the State received more than $5
million during this period, it never initiated the review. In a
letter dated March 30, 1998, Maryland included yet another
"tentative schedule" to complete the review by August of
1999 — the due date for the next Triennial Review.
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Consequences of
Late Reviews
District of
Columbia
During our field visit, we were informed by Maryland
Department of Environment personnel that the State was
reluctant to conduct reviews in fear of being sued either by
industry if water quality standards were increased, or by
environmental groups if the standards were made less
protective.
Similar to Maryland, Delaware also
submitted certain revised standards to
the Region in 1993, but again only as
a result of a lawsuit. Hence, these
revised standards do not satisfy the
Clean Water Act requirement because public hearings were
limited to the specific standards litigated.
The District completed a Triennial
Review in March 1994 after not
having submitted revised standards
since the mid-1980s. Although the
next review was due in March of 1997,
the Region does not expect to receive
the final revisions until fall 1999.
The Commonwealth should have
submitted a Triennial Review in March
1997. According to regional personnel,
Pennsylvania has been directing its
resources to modifying its regulations.
Upon completion, the Commonwealth intends the modified
regulations to constitute fulfillment of the Triennial Review
requirement.
Virginia completed its last Triennial
Review in May 1992. Revisions to its
water quality standards were made in
1995, but not submitted to EPA until
August 1998. According to Region III
personnel, the revised regulations have been submitted to
EPA Headquarters for review and concurrence.
The purpose of adopting water quality standards into law is
to protect water bodies. The purpose of holding public
hearings to review these standards at least every three years
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Report No. E1HWF7-03-0160-910018
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is to determine which standards may need revision. Such
revisions may be warranted for reasons including: new
scientific and technical data; environmental changes;
changes in laws and regulations; or, improvements to the
quality of a water body that require more stringent
standards to maintain the improvements. For example, as
discussed in Chapter 3, since 1990, Maryland's standards
have included an inadequate anti-degradation policy.
Moreover, its incorrect criteria for metal pollutants may have
enabled industry to discharge more pollution into Maryland
waters than allowed under the Clean Water Act.
Holding public hearings and reviewing water quality
standards at least every three years is not a voluntary
process; it is mandated under the law, and individual States
as well as EPA have been sued in the past regarding lapses of
adherence to the Clean Water Act.
Section 106(e) of the Clean Water Act stipulates that EPA
should not award grants if a State fails to carry out its
program. Between 1995 and 1998, the Agency awarded more
than $35 million in grants funds to the States in Region III to
manage their water quality programs. Section 303(c)(l)
requires States to hold public hearings at least every three
years to review standards. Section 303(c)(4) enables EPA to
take action should a State neglect to do so. Section
303(c)(4)(B) specifies that the Administrator shall promptly
prepare and publish proposed regulations ...
In any case where the Administrator
determines that a revised or new
standards is necessary to meet the
requirements of this Act.
Recommendations We recommend the Region III Administrator:
4.1 Request the Administrator of EPA to consider initiating
Clean Water Act 303(c)(4)(B) actions against Delaware,
the District of Columbia, Pennsylvania, and Virginia.
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4.2 Withhold a portion of Section 106 funding from any
State whose Triennial Review is overdue.
Region III Response to Draft Report
The draft report recommends that the Administrator be requested to initiate
Triennial Reviews in Maryland, Delaware, the District of Columbia, Pennsylvania
and Virginia. Region III believes it is more appropriate to initiate a 303(c)(4)(B)
action which allows other options such as recommending that the Administrator
make a finding of deficiency and promulgate appropriate standards.
The draft report recommended withholding Section 106 funding from any state
whose Triennial Review is overdue. The Region is considering this and has done so
in the past.
Maryland Response to the Draft Report
Due to the litigation that developed challenging the legality of the regulations
adopted during the last Triennial Review and the subsequent revisions to water
quality regulations, the schedule was disrupted with EPA's full knowledge. The
State anticipates that future Triennial Reviews will be held in a timely manner.
Maryland has initiated its current Triennial Review in response to a request from
Region III. Hearings for the public involvement component began in mid-January,
and a review in response to Region Ill's specific concerns is well underway.
OIG Evaluation
We concurred with the Regional Administrator's suggestion and adjusted our
recommendation accordingly. We deleted the State of Maryland from the
recommendation because it started a Triennial Review.
As the Region is still considering withholding Section 106 funding, we retained our
original recommendation.
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CHAPTER 5
PLANNING DOCUMENTS NOT PREPARED OR UPDATED
States in Region III did not prepare or update water quality
planning documents as required by the Clean Water Act and
by Federal regulations. This occurred for several reasons.
Regional personnel argued that certain documents were not
actually required to be submitted, or that other documents
were suitable substitutes. Also, the responsibility for
approving some documents shifted to regional personnel who
lacked training. The absence of these documents lessens
confidence that States are effectively managing their
programs to clean up water bodies. As we explained in
Chapter 1 of this report, Federal funds are provided by
Section 106 of the Clean Water Act. These funds subsidize
State programs to fulfill Clean Water Act requirements, one
of which is to submit these documents. Moreover, the
absence of Continuing Planning Process documents has
resulted in lawsuits against EPA in Delaware, Maryland,
Pennsylvania, and Virginia.
SUMMARY OF STATE COMPLIANCE
States
Maryland
Delaware
District of Columbia
Pennsylvania
Virginia
West Virginia
Continuing
Planning
Process
1986
1998
No
1998
1974
1979
Water Quality
Management
Plan
No
No
No
No
No
No
Monitoring
Strategy
No
No
1988
1993
1990
No
Quality Assurance
Management
Plan
No
No
No
No
1998
No
Project
Plans
Yes
Yes
Yes
Yes
Yes
Yes
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Continuing
Planning Process
Documents
Water Quality
Management
Plans
Monitoring
Strategy
The Clean Water Act and 40 CFR Part 130.5 require States
to establish and maintain a Continuing Planning Process
(CPP). Also, EPA is required by the CFR to periodically
review each of these documents for accuracy. Although each
State in Region III did develop a CPP in the 1970s, they did
not maintain them, and the Region did not review them. In
four instances EPA was sued by environmental groups over
deficiencies related to these documents. In response to these
lawsuits, the Region attempted to review CPPs. However,
regional personnel were unable to do so, because they could
not locate the documents.
The purpose of a CPP is to outline the management processes
for a State's water quality program. For example, such
processes relate to water quality standards and Triennial
Reviews, which as discussed in Chapters 3 and 4 of this
report, are areas with which States have experienced
problems. The CPP also addresses how a State will develop
total maximum daily loads (TMDLs), i.e., the maximum
amount of pollution that is acceptable in each water body.
That TMDLs are essential is evidenced by the fact that the
Agency has been sued by environmental groups in 35 States,
because it did not develop TMDLs when States failed to do
so.
Title 40 CFR Part 130.6 requires each State to develop a
Water Quality Management Plan, the purpose of which is to
prioritize water quality problems, consider solutions, and
recommend remedies. However, none of the States within
Region III developed these plans. Moreover, the Region did
not request such plans based upon the assumption that
various other documents developed by the States fulfilled the
requirement. We disagree with this assumption for two
reasons. First, the various other documents only contain
some of the elements required in a Water Quality
Management Plan. Second, these documents are outdated;
they were prepared in the 1970's and early 1980's.
The Clean Water Act requires States to establish the
appropriate methods, systems, and procedures necessary to
monitor and compile data on the quality of its waters. EPA's
National Monitoring Guidance required States to document
and submit a five-year Monitoring Strategy. Maryland,
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Report No. E1HWF7-03-0160-910018
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Delaware and West Virginia have yet to develop a
Monitoring Strategy document, while the other States in
Region III need to update their documents.
A Monitoring Strategy delineates exactly how a State will
collect data to identify impaired water bodies. It is a
document that describes, for example, who will take water
samples, how often samples will be taken, and what specific
criteria the sampler will use, i.e., fecal coliform versus E. coli.
Quality Assurance Title 40 CFR Part 31.45 requires States to develop and
implement quality assurance practices. The special
conditions of the assistance agreements awarded under
Section 106 of the Clean Water Act, specifically requires the
States to develop (a) Quality Assurance Management Plans,
and (b) Quality Assurance Project Plans.
According to EPA, quality assurance practices are critical
because the Agency uses environmental data to set priorities,
measure progress and compliance, target inspections, and
identify needed enforcement actions. And, because the
States collect much of the data used by the Agency, it is
imperative EPA be assured the data was collected and
recorded accurately. Confidence in the integrity of
environmental data is weakened when evidence of quality
assurance is absent. Therefore, EPA needs to review the
specific documents that describe State policies and
procedures related to quality assurance.
None of the States except Virginia
developed the Quality Assurance
Management Plans. However, according
to regional personnel, EPA did not
provide training on how to prepare these
Plans until April 1998.
The Region has been slowly
implementing quality assurance
requirements. In 1984 the Agency
required each Region to develop and
implement a Regional Quality
Assurance Management Plan. In fiscal
years 1992 through 1995, the Agency reported its
Management
Plans
U.S. EPA Headquarters Library
Mail code 3201
1200 Pennsylvania Avenue NW
'
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environmental data quality as a material weakness in its
Federal Managers' Financial Integrity Act Report to the
President. In August 1994 the Agency's Office of Research
and Development concluded the quality assurance performed
by Region III was sporadic at best. In 1996 the Region
completed its Quality Assurance Management Plan. In
accordance with this plan, in 1998 the Region trained State
personnel on how to prepare their Quality Assurance
Management Plans. The next step is to have regional
personnel trained on how to review State Quality Assurance
Project Plans.
From fiscal year 1995 through 1998,
States in Region III received Federal
funds exceeding $35.5 million to fulfill
a wide range of water quality activities
required under the Clean Water Act, including: (a)
developing and reviewing standards; (b) monitoring and
assessing the water; and, (c) preparing the reports and
documents required under the Act.
Conclusion Although some progress has been made towards obtaining
planning documents, the Region needs to do more to meet the
goals of the Clean Water Act. These documents are
important because adequate planning is the initial step for
States to manage their water quality programs in a
systematic and organized manner. Moreover, without these
documents, EPA is less assured that the States are using
Federal grant funds to address the highest priority water
quality problems, and leaves itself vulnerable to lawsuits by
environmental groups.
We believe there were several reasons why these documents
have not been prepared or updated as required.
* Regional personnel argued that certain documents were
not actually required to be submitted.
• Regional personnel deemed other documents as suitable
substitutes.
* Responsibility for approving documents shifted to
regional personnel who lacked training.
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Recommendations We recommend the Region III Administrator:
5.1 Require States receiving grants under Section 106 of the
Clean Water Act to develop and/or update Monitoring
Strategies and Water Quality Management Plans.
When necessary, withhold funds from States that
neglect to do so.
5.2 Train Region III personnel so they can fulfill their
responsibilities by working with the States to help
ensure the quality of environmental data.
Region III Response to Draft Report
Region III agreed with the OIG's conclusion that the water quality management
planning process and associated documents and processes required by the Clean
Water Act are important. As part of several memoranda of agreements with the
States, the Region has negotiated commitments by the States to update their
Continuing Planning Processes. Region III did not, however, agree with the details
in the table entitled "Summary of State Compliance."
Water Quality Management Plan
The report lists none of the States have Water Quality Management Plans. Region
III strongly disagreed with this statement. The State's Water Quality Management
Plan does prioritize water quality problems, consider solutions, and recommends
remedies; however, Region III does not believe that it is embodied in a single
document, but rather an overall process which includes many different components.
In fact, all States have recently completed Unified Watershed Assessments as part
of the Clean Water Action Plan to establish priorities in cooperation with a broad
range of State and Federal agencies.
Quality Assurance Documents/Training
Under Quality Assurance Management Plans, Region III said it should be noted
that prior to FY '97, Quality Assurance Management Plans were entitled "Quality
Assurance Program Plans" (QAPPs), which all the states submitted back in the mid
1980's. These QAPPs were approved by the Region III Environmental Services
Division (ESD) at that time. Sometime in the early 1990s, BSD disinvested in this
review and stated that it was the Project Officer's responsibility to review Quality
Assurance Program/Project Plans (QAPjPs). Project Officers in all EPA programs
were in the same situation and were not provided with any training by ESD to carry
37
Report No. E1HWF7-03-0160-910018
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out this task. Also, it was never brought to anyone's attention that the Program
Plans expired after a certain amount of time.
All of the States were represented at the Quality Assurance Management Plan
training in April of 1998. Several of the States committed to send in their Quality
Assurance Management Plans to the Regional Quality Assurance Manager in the
ESD Annapolis Office for review by mid-December. Also, the Regional Quality
Assurance Manager is planning to train the EPA Project Officers sometime in the
spring on how to review a Quality Assurance Project Plan. After training of the
Project Officers is complete, the Regional Quality Assurance Manager then plans to
go back to the States and train them on the same review.
Up until FY 1998, according to Region III, most of the states have been sending
Quality Assurance Project Plans to EPA for review. The Water Protection Division
has been working with the Regional Quality Assurance Manager and the Regional
Quality Assurance Council since October, 1997 to complete the above-mentioned
tasks and correct the deficiencies listed in the audit report.
MonitoringjStrategy
Region III stated that monitoring strategies were requested as part of the S. 106
grant guidance and not required, although several grants were conditioned to
provide a monitoring strategy. Maryland's Section 106 grant was conditioned to
provide a monitoring strategy, and Region III is working through the Performance
Partnership Grant Program to induce Maryland to provide a strategy document. A
monitoring strategy was never requested from Delaware due to the fact that the
State had already assessed all of its waters, thereby alleviating the need for a
comprehensive strategy. Virginia has just recently submitted a new draft
monitoring strategy, and Region III is working with West Virginia to update its
Watershed Assessment Program to include a more detailed monitoring strategy.
Maryland Response to Draft Report
The CPP has been adopted in accordance with the requirements of the Clean Water
Act. MDE provided public notice on July 13, 1998 that the CPP is being revised
with public participation. MDE anticipates that such revisions and review of the
CPP will occur periodically in future years.
MDE will perform chemical and physical monitoring in accordance with the Cycling
Strategy. Numerous monitoring plans exist and incorporate QA/QC protocols. Past
305(b) Reports have described the monitoring programs that produced the data
used. MDE stated that there are well documented monitoring plans for the
Chesapeake Bay and many tributaries. Detailed monitoring plans are available for
38
Report No. E1HWF7-03-0160-910018
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the Lower Delmarva Peninsula and the Upper Bay as part of the Watershed Cycling
Strategy. Plans for the remaining parts of the State will be developed as the
Watershed Cycling Strategy moves on to those areas.
DNR has been working to update the State's Water Quality Monitoring Strategy to
incorporate the latest information about the State's diverse monitoring approach.
DNR stated that continuing and substantial change in these programs have
occurred recently and need to be addressed, including the transfer of monitoring
programs between State agencies, the addition of regional TMDL-based and new
Pfiesteria monitoring efforts as well as the proposed National Estuary program
monitoring program. While each water quality monitoring effort has unique goals,
MDE and DNR have had formal meetings to coordinate the respective monitoring
efforts and Quality Assurance plans.
OIG Evaluation
The Region III response regarding training project officers satisfies
Recommendation 5.2.
The Region presents several arguments disputing the contents of the finding.
Where we agreed with these arguments, we modified the finding. However, in most
instances we still believe there were problems regarding planning documents.
Monitoring Strategy
The Region asserted that monitoring strategies were requested as part of the
Section 106 grant guidance, but not required (although several grants were
conditioned to provide a monitoring strategy). We disagree.
Section 106 (e) of the Clean Water Act stipulates that the Administrator shall not
make any grants under this Section to any State which has not provided or is not
carrying out as part of its program the establishment and operation of appropriate
devices, methods, systems, and procedures necessary to monitor, and to compile and
analyze data....
The Section 106 Monitoring Guidance document (dated October 17,1994) stipulates
under "Monitoring Strategy" that States should submit a current ambient
monitoring program strategy with the 106 grant application.
Therefore, we recommend that the Region require the States to submit/update their
monitoring strategies.
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Report No. E1HWF7-03-0160-910018
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Water Quality Management Plan
The Region asserts that this is not a single document, but rather an overall process
which includes many different components. During the audit, regional personnel
advanced the argument that "Basin Plans" fulfilled the Management Plan
requirement. We disagreed because the Basin Plans only contained some of the
Management Plan requirements. For example, according to 40 CFR Part 130.6, the
first required element of a Water Quality Management Plan is 'Total Maximum
Daily Loads." As this element is not contained in Basin Plans, we believe that it
does not fulfill the requirement. Therefore, we recommend that the Region require
that the States develop Water Quality Management Plans.
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Report No. E1HWF7-03-0160-910018
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APPENDIX A
Office of Water Response to Draft Report
41
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42
Report No. E1HWF7-03-0160-910018
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
*j^^2£j.^Si 9
\ •t^Mfy$6r* OFFICE OF
^ ^° WATER
March 24, 1999
MEMORANDUM
SUBJECT: DIG Draft Report on Region 3 Water Quality Standards, Monitoring
and Reporting (No. EIHWF7-03-0160)
FROM: J. Charles F
Assistant Admi
SftffflOl)
TO: Michael D. Sinftions
Deputy Assistant Inspector General for Internal Audits (2421)
, The Office of Water (OW) has reviewed the Office of Inspector Generals (OIG) draft
report on Region 3 Water Quality Standards, Monitoring, and Reporting. This memorandum
responds to the two recommendations in the report directed to the Assistant Administrator for
Water.
1. Delete the option that allows States to us fecal coliform as criteria for reporting
bacteria impairments.
2. Require the use of £ coli and enterococcus tests in accordance with the Agency's
1986 Ambient Water Criteria for Bacteria.
Background
The fecal coliform bacteria enumeration test was developed in the 1960s as a repacement
for the total coliform test in sewage and in sewage-polluted ambient water.
It was shown to be more specific to warm-blooded animal fecal waste than total coliform.
It was the indicator selected in the early water quality criteria recommendations produced by
the Environmental Protection Agency (EPA) and its predecessor Agency: the 1968 Water
Quality Criteria and the 1976 Quality Criteria for Water. It is also designated a conventional
pollutant in Section 304(a)(4) of the Clean Water Act. Following the enactment of the 1967
and 1972 Federal water pollution control acts and their requirements for water quality
standards adoption by the States, its use by the States was almost universal.
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EPA seminal studies of enteric disease in recreational swimmers in the 1970s were
the first such studies to use epidemiological techniques to statistically demonstrate which
bacterial indicators provide correlation with gastroenteritis incidence. These studies used new
laboratory methods to measure Escherichia colt, the coliform bacteria always present in warm
blooded animal feces, and enterococci, a small subgroup of 4 species which, while within the
much larger fecal steptococci group are virtually always found in warm blooded animal feces.
Statistically significant correlations were determined and criteria developed that were based on
swimmer illness rates as a function of indicator bacterial densities in ambient waters — that is,
on a risk basis. Moreover, it was found that fecal coliform, while a valid indicator of the
presence of fecal material, did not correlate with swimmer illness rates. The 1986 criteria
document used this research to present criteria that were roughly equivalent in stringency to
the previously recommended fecal coliform criteria.
EPA encouraged the States to change to the new indicators to take advantage of their
improved ability to base decisions on swimmer illness risks. For example, beginning with the
Federal Regulation Notice announcing the availability of the criteria document that encouraged
quick State adoption (51 FR 8012, March 7, 1986), to a more recent letter (January 13,1997)
from the Assistant Administrator for Water urging States to adopt the new indicators (copy
attached). While a number of States have done so, more than two-thirds have not. The States
tha have not adopted the new criteria have cited a number of perceived problems. Among
these are the following: the drinking water program still uses total coliform and fecal
coliform (E. coll is now an option, however), making additional demands on laboratories;
the enumeration methods for E. coli and enterococci are not in the Agency's methods at
40 CFR Part 136 and thus may pose problems if used in NPDES permits; and they have long
records using Fecal coliform and do not wish to change indicators.
Legal Standard
The water quality standards regulation addresses required criteria in State water quality
standards in 40 CFR 131.11. This regulation provides that States should establish numerical
values based an EPAs §304(a) criteria guidance, §304(a) criteria guidance modified to reflect
site-specific conditions or other scientifically defensible methods.
EPA's Current Plans
OW agrees with the concerns expressed in the OIG's draft report. EPA recognizes that it
is important for States to adopt microbiological water quality criteria that adequately protect
designated uses. For these reasons, the President included specific provisions concerning beach
protection in the Clean Water Action Plan that he issued in February 1998. In response to the
Action Plan, EPA recently completed sea. Action Plan for Beaches and Recreational Waters
that includes a renewed commitment to encouraging State adoption of updated criteria to
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3.
protect beaches. We will provide you a copy of this Action Plan as soon as copies have been
printed. In the Action Plan, EPA commits to several steps in the near future regarding water
quality criteria. These steps include conducting a literature review and analysis to verify the
continuing scientific soundness of the 1986 criteria; notifying the States of EPA's intention to
make a finding that use of fecal coliform criteria alone will not support the primary contact
designated use (presuming that position is justified by the review), and initiate a Federal
promulgation to impose the 1986 E. coli and/or enterococci criteria in addition to or in place of
outdated fecal coliform criteria where necessary. EPA is also committed to promulgating the
enumeration methods for E- coli and enterococci into 40 CFR Part 136 prior to any Federal
promulgation for a State.
Other Issues
On page 8, second paragraph, the draft report discusses State reporting of bacteriological
measures. Specifically, this paragraph states that "the Agency acquiesced to allow some States
to use less stringent criteria [fecal coliform measures] to assess the quality of their water bodies."
I am concerned that the paragraph may be misleading. First, it asserts that fecal coliform
measures are "less protective" than EPA's 1986 criteria for enterococci and E. coli. Although
EPA recommends the use of the 1986 criteria, rather than the older fecal coliform criteria, it is
riot always true that the 1986 criteria provide a higher level of protection. For a more complete
description of this issue, see the 1986 criteria document [Ambient Water Quality Criteria for
Bacteria -1986, EPA 440-5-84-002, January, 1986 at page 8]. Second, the draft report implies
that the Agency in some way lowered its reporting requirements. This is not the case. EPA's
reporting guidance is that States should determine whether the designated uses and water quality
criteria in their adopted water quality standards are being attained. More specifically, our
reporting guidance to States, issued as Guidelines for Preparation of the 1996 State Water
Quality Assessments (305(b) Reports), EPA 841-B-95-001, May 1995, and reiterated in
Guidelines for Preparation of the Comprehensive State Water Quality Assessments (305(b)
Reports) and Electronic Updates, EPA-841-B-97-002A and -002D, September 1997, provides
that "States should base use support determinations on their own State criteria for bacteriological
indicators." EPA 1997, page 3-34. The Guidelines go on to say that "EPA encourages States to
adopt [the 1986 criteria]." Therefore, until a State has adopted the 1986 criteria, EPA cannot
mandate the 1986 measures in State reporting, although we would prefer such reporting. We
would be happy to work with your staff in revising the paragraph in the draft report.
Summary
I believe that EPA's planned actions described above will achieve the OIG's
recommendations on a reasonable time schedule. At the completion of the Clean Water Action
Plan's and the Beach Action Plan's measures for beach protection, all of the States will have the
recommended bacterial indicators in place. At that point all of the States will be capable of
using E. coli or enterococci for purposes of section 305(b) reporting, and the draft OIG report's
concern about State reporting of bacterial impairments will be moot.
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If you have any further questions or if you need additional information, please call me or
have your staff contact Dr. Elizabeth Southerland, Acting Director, Standards and Applied
Science Division, at 202-260-3966.
Attachments
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
OFFICE OF
WATER
Jan 13, 1997
Honorable Michelle Brown
Commissioner
Environmental Conservation Department
P.O. Box 0
Juneau, Alaska 998 11
Dear Ms. Brown:
I am writing to share with you the U.S. Environmental Protection Agency's (EPA) concern
with public health risks posed by contaminated bathing beaches and to ask for your participation
and support in reducing these risks. Scientific evidence documenting the risk of infectious
diseases caused by microbial organisms in recreational waters continues to grow -- for example,
a recent epidemiological study in Santa Monica Bay, California, documented an increased risk of
illness associated with swimming near storm drains. The Santa Monica study is only one of
many. Additionally, the number of beach closures reported every year is on the rise. To
counteract this growing problem and to ensure public notification when they may be at risk of
illness and disease, the EPA is in the process of establishing a national program to protect public
health at our nation's beaches (see Enclosure 1). I welcome and strongly encourage your
participation in this effort.
The national beach program is directed towards reducing the health risks associated with
recreational waters through better science and improving coordination among the various
Federal, State, Tribal and local agencies responsible for reducing contamination and notifying the
public of health threats. A cornerstone of the program is State and Tribal adoption of EPA's
1986 updated bacteriological ambient water quality criteria (see Federal Register Notice,
Enclosure II). I strongly encourage all States and Tribes, that have hot done so, to adopt these
criteria as soon as possible.
The national beach program will support State, Tribal and local efforts by providing better
technical assistance and improving coordination among appropriate agencies and the public. The
program will focus on four specific areas:
S improving the scientific and policy foundations in support of local, State and Tribal
actions;
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y providing improved test methods and indicators to better protect the health of beach goers
in a more timely and comprehensive manner;
S developing better predictive models to help notify the public of potential risks; and
/ enhancing the public's right-to-know about the safety of their local beaches by
establishing and disseminating a national beach contamination data base.
Although many of the activities will be in the making for several years, there are actions
that can and should be taken immediately. We will also be inviting your agency to participate in
a national conference on this subject and to contribute information to a national beach/health data
base. Your agency will be notified about these as soon as they are scheduled.
In addition to the areas outlined in Enclosure 1, EPA will continue its current work with
the States to control the sources of microbial pathogens. These activities include controlling
urban wet weather flows such as sanitary sewer overflows, combined sewer overflows and urban
storm water runoff. Currently, several Federal Advisory Committees are working with EPA to
develop detailed control strategies for these sources.
As the Agency implements the national beach program outlined above, we will ask for
your continued involvement and provide you with more detailed information. If you have any
initial questions or comments, please feel free to contact me or have your staff call
Dr. Tudor Davies, Director, Office of Science and Technology, at (202) 260-5400 or
Mr. Rick Hoffmann, Beach Health Protection Team Leader, at (202) 260-0642.
Sincerely,
Robert Perciasepe
Assistant Administrator
Enclosures (2)
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ENCLOSURE I
National Beach Program
1. Improved Scientific and Policy Foundation for Local State and Tribal Actions
Water Quality Criteria & Standards, To improve the scientific and policy foundation for
State and local actions, the U.S. Environmental Protection Agency (EPA) is encouraging all
States and Tribes to adopt updated bacteriological ambient water quality standards protective of
public health. In 1986, EPA issued a revision to its bacteriological ambient water quality criteria
recommendations (51 FR 8012, March 7,1986) to protect body contact recreation. The revised
criteria introduced new indicator bacteria, E coli and enterococci, which provide a better
correlation with swimming-associated gastrointestinal illness than the previous criteria
recommendations for fecal coliform bacteria. The revised criteria are particularly useful to
public health administrators because they enable quantitative estimates of illness rates associated
with swimming in polluted water. Since EPA published the 1996 criteria recommendations,
several States and Indian Tribes have adopted the revised criteria into State or Tribal water
quality standards.
The 1986 criteria were derived from a series of epidemiological studies which established
a dose-response relationship between swimming-associated illness and water quality. Moving to
these criteria, therefore, will ensure that States and Tribes adopt standards that are more risk-
based. Although there continues to be a residual risk associated with swimming and other body
contact activities, EPA believes that the 1986 criteria provide for an increased level of protection
and that the methodology allows States and Tribes to set even more stringent levels of protection,
if appropriate.
As part of EPA's national program, EPA strongly encourages all States and Tribes that
have not done so to adopt EPA's 1986 criteria to facilitate defensible risk management decisions
for protection of human health in recreational waters. We offer the support of staff in EPA's
Regional and Headquarters Offices to assist your organization in adopting the 1986 criteria at
the next available opportunity. If your jurisdiction has already adopted the revised standards,
EPA offers its technical assistance to help implement these standards. For example, EPA could
help agencies respond to circumstances where site-specific factors influence these criteria.
Policy Dialogue — National Conference. EPA also intends to establish a policy dialogue
with local, State and Tribal agencies to discuss the fall range of issues related to microbiological
contamination of recreational waters. To facilitate these discussions, EPA will convene a
national beach and public health protection conference for representative officials. The
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conference will review current beach health activities, discuss possible changes and identify
specific actions to protect public health at bathing beaches and recreational waters. EPA would
then update its beach health program using conference recommendation. When the initial
planning is complete, we will notify appropriate agencies and interested parties of the date and
location.
2. Provide Improved Test Methods and Indicators to Better protect the
Health of Beach Goers
EPA recognizes that there is a need to provide improved test methods and monitoring
guidance to responsible agencies. EPA will Provide technical assistance to State and private
laboratories to implement recently developed methods for enterococcus testing. This new
methodology will provide results within twenty four hours, half the time required by the old
method. EPA will continue to conduct additional research to improve methods for detection and
quantification of bacterial contamination. EPA will also conduct research to develop a new
generation of indicators for water-borne pathogens.
3. Develop Better Predictive Models to Help Notify the Public of Potential Risks
EPA will work with local, State and Tribal governments and other Federal agencies to
develop models that can be used to predict when bathing beach contamination events may occur.
These models will assist public health officials in determining when beach warnings may be
needed. EPA will initiate a multi-year effort, working with States and the National Oceanic and
Atmospheric Administration, to develop, verify, and apply these models at several selected
locations in both coastal and inland waters.
4. Enhancing the Public's Right-to-know about the Safety of Their Local Beaches by
Establishing and Disseminating a National Beach Contamination Data Base
EPA believes there is a need to improve the overall quality and availability of public
information about beach health protection activities; these include: monitoring and assessment
activities, water quality standards, beach closures, etc. Many organizations share responsibility
for these activities. Consequently, EPA will work with environmental health officials from
Tribal, State, county, and city agencies, as well as from various interest groups to
compile and verify this information. EPA will then input the information into a comprehensive
data base and make it available on the Internet.
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Region III Response to Draft Report
51
Report No. E1HWF7-03-0160-910018
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[This page was intentionally left blank.]
52
Report No. E1HWF7-03-0160-910018
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
SUBJECT: Draft Report of Audit on Region III Water Quality February 19,1999
Standards, Monitoring and Reporting
Audit Report Number E1HWF7-03-0160
FROM: W. Michael McCabe
Regional Administrator (3
TO: Michael D. Simmons
Assistant Inspector General for Internal Audits (2421)
In response to the draft audit report and recommendations, we offer the following comments.
Both of the responsible Region III offices submitted comments which are summarized below
and detailed in the attachments. We have also attached a set of complete responses as submitted
by each of the affected EPA offices.
The Environmental Services Division (ESD) generally agreed with the draft report, but noted
that some clarification is needed. Recommendation 2.1 proposed deleting the option that allows
states to use fecal coliform as a criterion for reporting bacteriological impairments.
ESD believes that the states should be able to use fecal coliform until a new indicator is adopted.
The Water Protection Division (WPD) generally agreed with the report findings that the states
have been lax in completing timely triennial reviews and remedying EPA disapprovals; and that
EPA's efforts in the past have not been successful in forcing states to move forward. The Region
also agrees that the "elevation process" to request that the Administrator move to promulgate
Federal standards where the states' standards are deficient has not been widely used in Region III
or, as a matter of fact, in the rest of the nation. Previous efforts to improve state standards have
relied on an approach which anticipated continuous improvement in state standards, while
maintaining the state's prerogative to adopt its own regulations. Recent litigation, starting with a
lawsuit in Pennsylvania which ordered the Administrator to promulgate Federal water quality
standards for Pennsylvania, was a major step in changing EPA's role in the state's water quality
programs. Region III is currently aggressively attempting to remedy outstanding water quality
standards disapprovals and this has become, in fact a national priority.
-Bacteria In Water Not Properly Assessed or Reported
We concur that there are inconsistencies in the form of bacteria criteria adopted by Region III
states and that EPA has not taken formal action to disapprove states' standards when Enteroccus
and E. Coli were not adopted to replace fecal coliform criteria. We are expecting
Customer Service Hotline: 1-800-438-2474
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Headquarters to address the question of EPA's position and guidance regarding bacteria.
For Maryland, in particular, we disagree with Recommendation 2.1, "Delete the option that
allows states to use fecal coliform as a criteria for reporting bacteria impairments." If a state has
a fecal coUform standard already in place, it would be inappropriate to base impairment decisions
on a different, unadopted criterion.
The draft report recommended rescinding the approval of the Impaired List (waters exceeding
fecal coliform standards). We do not concur with this recommendation. On April 17,1998,
Region III commented on MDE's draft list of impaired waters. On September 4,1998, MDE
clarified its interpretation of the fecal coliform standard, which we determined to be reasonable.
-Deficient Standards Were Not Corrected
EPA Region HI agrees that the Region III states have not been timely in completing triennial
reviews and, as a result, deficiencies now exist in standards that were previously approved. Also,
EPA agrees that there are state standards which were disapproved for which EPA Region III has
not pursued Federal promulgation by the Administrator. EPA Region III is aggressively pushing
the states to move to correct outstanding disapprovals and to initiate triennial reviews. Triennial
reviews have been completed in Virginia and West Virginia, with the approval/disapproval
determinations pending.
The report notes that EPA Region III did not issue etNotices of Deficiency" to the states or
elevate these issues to the EPA Administrator, who would then have the authority to pursue
Federal promulgation, although not the obligation. EPA Region III agrees with the importance
of notifying the states when changes are needed and also to selective use of Federal promulgation
where other efforts have failed. The report, however, implies that "Notices of Deficiency" are a
formal tool available to the Region. In fact, EPA Region III sends letters to the states which
identify areas to be modified or considered during the triennial review, which are more aptly
called simply, notices of deficiency. If a state has not submitted revisions to the Regional
Administrator for approval/disapproval, the only formal recourse to initiate change is for the
Administrator to take steps to initiate a Federal promulgation in accordance with Section
303(c)(4)(b) of the Clean Water Act (CWA).
The draft report recommended that the Region coordinate with EPA Headquarters to
promulgate standards if states do not correct deficiencies with 90 days as allowed by the CWA.
This is technically incorrect. The CWA only requires that "disapprovals" be corrected with 90
days. There is no regulatory time limit for correction of deficiencies although the Region works
to get the states to address them during the next triennial review.
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-Missed Opportunities to Correct Standards
The draft report recommends that the Administrator be requested to initiate triennial reviews in
Maryland, Delaware, the District of Columbia, Pennsylvania and Virginia. We believe it is more
appropriate to initiate a 303(c)(4)(B) action which allows other options such as recommending
that the Administrator make a finding of deficiency and promulgate appropriate standards. The
draft report recommended withholding Section 106 funding from any state whose triennial
review is overdue. We are considering this and have done so in the past.
If you have any questions concerning this response, please contact Robert G. Reed at (215)
814-5270.
Attachment
cc: Thomas Maslany (3WPOO)
Stanley Laskowski (3ESOO)
Carl Jannetti (3AIOO)
Jonathan Fox (4101)
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Recommendations
As noted in the draft report, the Assistant Administrator for Water is addressing the first
two recommendations in Chapter 2.
Recommendation 2.3
Send a Deficiency Notice to Maryland based on how the state implements their
standards. The Department of Natural Resources (DNR) should either not require a
sanitary survey to confirm contamination or perform the surveys whenever testing reveals
elevated bacteria levels.
Response - On February 4,1998, the Regional Administrator wrote to the Maryland Department
of Environment (MDE) requesting development of a schedule for completing a triennial
review of water quality standards. On March 2, 1998, the Region wrote to MDE to
provide detailed guidance on 24 items for the triennial review and to ask MDE to
"provide data that shows all use I waters are meeting the criteria in accordance with 40
CFR131.11(a)."
On March 30,1998, MDE wrote to the Regional Administrator providing a schedule for
the triennial review including final adoption of water quality standards by August 1999.
Recommendation 2.4
Rescind the approval of the Impaired List or assure that the additional monitoring
promised by Maryland is promptly carried out.
Response - On April 17,1998, the Region commented on Maryland's draft list of impaired
waters pursuant to Section 303(d) of the Clean Water Act (CWA). Our comments
requested an explanation as to why certain waters which exceeded the numeric criteria for
fecal coliform were not on the Impaired List. In a September 4,1998 letter, MDE
clarified its interpretation of its fecal coliform standard to support the decision that their
data was insufficient to determine that the water violated the fecal coliform standard.
We determined that MDE's interpretation was reasonable, particularly in light of the
state's commitment, by letter dated August 12,1998, to allocate additional resources to
monitoring where data was insufficient to make a testing determination. We agree that
follow-up is necessary to ensure that the state follows through with this commitment. We
do not concur with Recommendation 2.4 that EPA should rescind its approval of
Maryland's Section 303(d) list (Impaired List).
Recommendation 3.1
Send Notices of Deficiency to each state in the Region clearly identifying the inadequate
standards.
Response - We recommend that "Notices of Deficiency" be changed to lower case.
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Recommendation 3.2
Coordinate with EPA Headquarters to promulgate standards if the states do not correct
the deficiencies within the 90 days allowed by the CWA.
Response - This is technically incorrect. The CWA only requires that disapprovals be corrected
within 90 days. There is no time limit for correction of identified deficiencies that are not
disapprovals. We will try to get the states to address these deficiencies during the next
triennial review.
Recommendation 4.1
Request the Administrator to initiate triennial reviews in Maryland, Delaware, the District
of Columbia, Pennsylvania, and Virginia.
Response - We believe it would be more appropriate to state that the Administrator initiate a 303
(c)(4)(B) action. By specifying initiation of a triennial review, we neglect other options
such as simply recommending that the Administrator make a finding of deficiency and
promulgate appropriate standards.
Recommendation 4.2
Withhold a portion of Section 106 funding from any state whose triennial review is
overdue.
Response - We have certain discretionary authority to award grants that condition grant funding
upon the completion of certain activities and are considering doing so, and have done so
in the past.
Recommendation 5.1
Prioritize water quality planning documents and emphasize their importance to Region
personnel.
Response - No comment
Recommendation 5.2
Require states receiving grants under Section 106 of the CWA to develop and/or update
required planning documents. When necessary, withhold funds from states that neglect to
do so.
Response - We have discretionary authority to award grants that condition funding upon
completion of certain activities and are considering doing so, and have done so in the
past.
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Recommendation 5.3
Have Region III personnel trained in their responsibilities for ensuring the quality of
environmental data.
Response - No comment
General Comments
In addition to those comments directly responding to each recommendation, we have
comments on the other portions of the draft report.
Generally, we agree with the OIG's recommendation and observation that the states have
been lax in completing timely triennial reviews and remedying EPA disapprovals of state
Water Quality Standards (WQS) submittal. Region Ill's efforts to move the states
forward have not been successful. Region HI has not used the escalation process to have
the Administrator move to promulgate Federal standards or find those state standards
deficient in accordance with Section 303(c)(4) of the CWA. The Administrator's
promulgation of WQS for Pennsylvania was a major step in changing EPA's role in the
states' WQS programs. We are aggressively attempting to remedy the outstanding WQS
disapprovals and, in fact, this effort is a national priority.
-The Antidegradation Policy does not target improvements but is aimed at protecting
existing water quality, including waters that do not meet standards as well as high quality
and pristine waters.
-Tools available to the Region to compel a full triennial review, a revision of a
Continuing Planning Processes (CPP) or a revision to approved standards are very
limited. The capitalization of Notice of Deficiency appears to label it as a formal tool
available to EPA. EPA has notified states regarding WQS which would be considered
inadequate if submitted for approval. We expect states to address these deficiencies in
the next triennial review. The Administrator decides if these deficiencies are worthy of
Federal promulgation.
-There seems to be a misinterpretation on page 10 of the report. Delaware is reported as
having 651 assessed miles with 84 miles impaired by bacteria. The 1996 S.305b report
from Delaware actually shows 801 miles assessed with 548 miles or 68 percent impaired
by bacteria. The reference in the report is "impairment of aquatic life support and
primary recreation."
-We believe the section beginning on page 18, Deficiencies in Other States Within
Region III is inaccurate for Delaware and West Virginia. EPA disapproved portions of
Delaware's WQS in April 1998 and have agreed to promulgate Federal standards for
those disapproved.
Although "42" problems were cited for West Virginia the number, itself, is not as
significant as the importance of the individual provisions. There are significant
differences in their importance.
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db
-Page 20, Region III Position does not reflect one very important position, resource
constraints. Resources are lacking both at Headquarters and Region III to undertake a
promulgation when a state does not make the required changes. Federal promulgation is
usually reserved for precedent-setting situations which require a complex analysis in
order to be consistent with all other states.
-The Chapter 5 discussion of planning documents not being prepared or updated should
take note of the fact that monitoring strategies were recniested as part of the S. 106 grant
guidance and were not required (as specified on page 27), although several grants were
conditioned to provide a monitoring strategy. Maryland's S. 106 grant was conditioned to
provide a monitoring strategy. It was never requested of Delaware because they had
already assessed all of their waters, thereby alleviating the need. Virginia has just
recently submitted a new draft monitoring strategy and we are currently working with
West Virginia to include a more detailed monitoring strategy.
-The Summary of State Compliance Table in Chapter 5 also shows the status of
submitted Quality Assurance Project Plans (QAPP). Contrary to the table, QAPP's were
submitted by Delaware in 1991 and Virginia in 1992. The table should be revised, as
well as the first sentence on page 28.
-It is inaccurate to state that the Region has been unwilling to enforce the states'
responsibilities under the CWA and Federal regulations because it considered Quality
Assurance Management Plans to be a low priority. Until FY 1998 most of the states have
been sending QAPP's to EPA for review. The Water Protection Division has been
working with the Regional Quality Assurance Manager to correct the deficiencies listed
in the report.
-We agree that the water quality management planning process and associated documents
required by the CWA are important. We disagree with the details in the Summary of
State Compliance Table on page 25. The report shows that none of the states have Water
Quality Management Plans. We strongly disagree. We do not believe that a state's
"Water Quality Management Plan" is embodied in a single document but, rather an
overall process which includes many different components. All states have recently
completed Unified Watershed Assessments as part of the Clean Water Action Plan to
establish priorities in cooperation with a broad range of state and Federal agencies.
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Anti-degradation
Policy
Designated Use
Notice of Deficiency -
Toxic Pollutants
GLOSSARY COMMENTS
The definition should be clarified to read that not just
improvements to water quality are protected, but the
existing quality.
We suggest the following change, "The use of a water body
designated by state regulations that include, at a minimum,
drinking water protection of aquatic life and recreation
(i.e., swimming, boating or white water rafting)." The minimum
uses as defined by the CWA, Section 101 are limited to fishable
and swimmable uses. The drinking water use is required where the
use actually occurs or can, at the discretion of state, be applied
statewide.
We agree with the intent but not the way it is portrayed throughout
the report. The capitalization implies that it is a formal process
under a statute or regulation. Failure to issue such letters should
not imply a violation of statute or regulation.
The second sentence should be modified, as follows:
"States are required to adopt specific numeric criteria for these
pollutants that are at least as stringent as EPA criteria
recommendations or provide a scientifically defensible rationale
for a less stringent criteria."
Additional Specific Comments
Chapter 1, Page 2,3rd full paragraph - We count 102 toxic pollutants with EPA criteria
recommendations. We suggest that it should be
38 other pollutants. We recommend that limits
be changed to "criteria" and stringent be changed
to "protective."
Chapter 3, Page 16,1st paragraph
- We are concerned that the wording concerning criteria
could be confusing. We suggest the following
modification: "Section 303(c)(2)(B) of the Clean Water
Act requires the states to adopt criteria for all toxic
pollutants pursuant to Section 307(a)(l) of the Clean
Water Act for which EPA has published criteria under
Section 304(a ), the discharge or presence of which in the
affected waters could reasonably be expected to interfere
with those designated uses adopted by the state."
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Page 17 - "Incorrect Criteria for Toxic Pollutants"
Because of EPA revisions in 1996 some of EPA's
recommended metals criteria are now less stringent
than Maryland's criteria. We recommend that the
following revision be made. "The net effect is that the
numeric levels set by Maryland may be less stringent
than the levels currently recommended by EPA.
Consequently, the state's standards may allow more
pollution..."
Page 18, Delaware - We recommend this section be rewritten, as follows: "In
1993, EPA identified a number of deficiencies with
Delaware's water quality standards program. After five
years of discussion between the state and the Region, many
of the deficiencies still remain unresolved. In April 1998,
the Region finally sent a letter to the state disapproving four
provisions of the standard and identifying a number of
provisions that the Region intends to recommend that the
EPA Administrator find deficient and promulgate replacement
standards should the state not make the recommended
corrections."
Page 19, West Virginia - We believe this misrepresents our letters to the state,
especially the use of definitive numbers of "problems."
In response to the West Virginia WQS Triennial Review
submitted October 12,1993, EPA identified four sections of
the West Virginia standards which were being disapproved
due to inconsistencies with Federal regulations. In addition,
four sections were conditionally approved and four
recommendations were made to allow the state to further
clarify the intentions of these sections. Recommendations
made to the state are in no way considered deficiencies but
are comments meant to assist the state in providing further
clarification and consistency.
Based on the next Triennial Review package on August 11,
1995, EPA was able to fully remove two of four disapproved
sections from 1993. Of the remaining two issues, we were
able to partially remove the disapprovals.
We are currently reviewing the state's 1998 Triennial Review
and it is premature to indicate what provisions will be found
deficient.
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Page 20, Region III Position
Chapter 4, Page 21,
Triennial Reviews Chart
Page 23, District of Columbia -
Page 23, Pennsylvania
Chapter 5, Page 25,
Summary of State Compliance
Table
Page 27, Quality Assurance
There is one position we believe was proffered during
interviews that is not reflected in this section. We suggest the
following be added: "The regions and Headquarters lack the
resources, both in terms of personnel and funding, necessary
to undertake a promulgation when the state does not make
the required changes."
Two changes needed to the chart. West Virginia
submitted a review package in July 1998 and Virginia
submitted a package in August 1998.
The District has informed EPA that the final triennial review
package will not be submitted until at least fall '99.
It would be more correct to say that Pennsylvania personnel
were occupied with the Regulatory Basics Initiative, including
modification to the water quality standards regulations which
are intended to constitute a triennial review.
On July 13, 1998, Maryland provided public notice of its
intent to revise its CPP and invited public comment. MDE
agreed to update its CPP and transmit it to EPA on or before
October 1,1999.
Under "Management Plans" it should be noted that prior to
FY '97 Quality Assurance Management Plans were entitled,
"Quality Assurance Program Plans," which were
approved by the Environmental Services Division (BSD). In
the early 1990's ESD disinvested in this review and it became
the project officer's responsibility to review Quality
Assurance Program/Project Plans. Project officers in all EPA
programs were assigned responsibility, but ESD did not
provide any training.
All of the states were represented at the Quality Assurance
Management Plan training in April 1998. Several have
committed to submit their plans for review to the ESD
Annapolis Office by mid-December. Plans have been made
to train EPA project officers in the states on the same review.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
SUBJECT: Draft Report of Audit on Region III Water Quality December 17, 1998
Standards, Monitoring and Reporting -
November 25, 1998 .
FROM: Thomas J. Maslany, Director ^/^^/
Water Protection Division (3WPOO) | f
TO: Thomas J. Gallagher (3PM70)
The Water Protection Division has reviewed the subject draft report. We spent significant time
with the staff from the Office of the Inspector General (OIG) on this audit and appreciate the
effort spent learning the complex and challenging details of the water quality standards (WQS)
program. We have a number of corrections and clarifications to the language in the report, which
are included as an attachment to this memo. The comments in the attachment are arranged in the
order that they appear in the report and do not reflect order of importance. We will highlight
below our more significant comments.
Generally, we agree with the OIG's observation that the States have been lax in completing
timely triennial reviews and remedying EPA disapprovals of State WQS submittals, and Region
Ill's efforts to date have not been successful in moving the States forward. Likewise, EPA
Region III has not used the escalation process to have the Administrator of EPA move to
promulgate Federal standards or find those State standards deficient in accordance with Section
303(c)(4) of the Clean Water Act. The EPA Regional Administrator's authority is limited to
approving or disapproving those water quality States which are new or revised and submitted to
EPA by the State for review after formal adoption as State law. The role and importance of
Federal promulgations have increased significantly over the past five years. The Administrator's
promulgation of WQS for Pennsylvania was a major step in changing the nature of EPA's role in
the States' water quality standards programs. We are aggressively attempting to remedy the
outstanding WQS disapprovals and, in fact, this effort is a national priority.
The Antidegradation Policy is represented as a policy that protects water quality
improvements. This is incorrect. The Antidegradation Policy is a three-tiered policy that
is targeted at protected existing water quality from being lowered, including waters that
do not meet standards as well as high quality and pristine waters.
Customer Service Hotline: 1-800-438-2474
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The processes available to the Region to force the States to complete a full triennial
review, submit a revised Continuing Planning Process (CPP), or revise standards that
have been previously approved is very limited. The OIG uses the term "Notice of
Deficiency" throughout this report. The capitalization appears to represent that the
Notice of Deficiency is a formal tool available to EPA Region III through regulation or
statute. As a matter of practice, EPA Region III has notified states of those areas of a
State's WQS regulations which have been approved or overlooked by EPA in the past but
which would not be considered adequate if the regulations were submitted to EPA Region
HI for approval today. At a minimum, we would expect the States to address these
deficiencies in the next triennial review. The decision on whether these deficiencies are
worthy of formal action through Federal promulgation rests with the Administrator.
We believe that the section beginning on page 18 entitled "Deficiencies in Other States
Within Region III," is inaccurate, specifically for Delaware and West Virginia. EPA
disapproved portions of Delaware's WQS in April 1998 and we have reached agreement
with Delaware to move ahead on a cooperative to promulgate Federal standards to replace
those which were disapproved. It should be noted for West Virginia that the reference to
"42 problems" implies that there is some relative weight assigned to the number of
specific provisions which are considered unacceptable. In fact, there are significant
differences in importance of the individual provisions. Also, the large number of items
disapproved also reflects that, several years ago, EPA Region III would have acted to
disapprove State WQS provisions which had been previously approved by EPA and not
revised. This limitation on Regional authority has recently been clarified at the national
level.
In Chapter 3 under "Region III Position," we believe that there was one very important
position, resource constraints, that was presented during interviews that is not reflected in
this section. The Regions and Headquarters lack the resources, both in terms of personnel
and funding, necessary to undertake a promulgation whenever the State does not make
the required changes. Federal promulgation for an individual State by the Administrator
also requires a complex analysis for consistency with all other States, since the
Administrator's promulgation is usually precedent-setting at a national level. Federal
promulgation is usually reserved for very serious situations where the national
interpretation is clear, independent of the context within individual State standards.
Regarding Maryland's bacteria criteria and its implementation, we agree that there are
concerns, but do not concur with Recommendation 2.4 that EPA should rescind its
approval of Maryland's Section 303(d) list (referred to as the Impaired List).
Recommendation 3.2 is technically incorrect. The Clean Water Act only requires that
disapprovals be corrected within 90 days. There is no time limit for corrections of
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identified deficiencies that are not disapprovals, although we try to get the States to address
these deficiencies during the next triennial review.
Regarding Recommendation 4.1, we believe it would be more appropriate to state that the
Administrator initiate an action under Section 303(c)(4)(B) of the Clean Water Act. By
specifying initiation of a triennial review, we neglect other options such as
recommending that the Administrator make a finding of deficiency and promulgate
appropriate standards.
Regarding the adoption and implementation of bacteria criteria, we agree that there are
inconsistencies among the States, but expect EPA Headquarters to address the findings
and recommendations in the Report regarding bacteria.
It is inaccurate to state that the Region has been unwilling to enforce the States'
responsibilities under the Clean Water Act and Federal Regulations because it considered
Quality Assurance Management Plans to be a low priority. Until FY '98, most of the
States have been sending Quality Assurance Project Plans to EPA for review. The Water
Protection Division has been working with the Regional Quality Assurance Manager to
correct the deficiencies listed in the audit report.
We agree with the OIG's conclusion that the water quality management planning process
and associated documents and processes required by the Clean Water Act are important.
We have, as part of several memoranda of agreements with the States, negotiated
commitments by the States to update their Continuing Planning Processes. We do not,
however, agree with the details in the table entitled "Summary of State Compliance" on
page 25 of the report. Our comments are described in the attachment to this
memorandum.
Regarding recommendations 4.2 and 5.2, we agree that we have certain discretionary
authority to award grants that condition grant funding upon the completion of certain
activities and are considering doing so, and have done so in the past.
Our comments do not address Recommendations 2.1 and 2.2 of the draft report. Since these
recommendations are being made to the Assistant Administrator for the Office of Water, we rely
on that office to provide any response to these recommendations, or the data the OIG used to
make its conclusions.
We look forward to concurring on the final response to the OIG on the draft audit. We suggest
that once the OIG has the opportunity to review the response that we schedule a meeting with
their office so that we may discuss our comments. We did note that similar audits are being
conducted in Regional offices around the country, and we would appreciate being kept apprised
of the findings that the OIG is making nationally. If you have any questions regarding the
Division's comments, please contact Evelyn S. MacKnight of my staff at extension 5717.
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Attachment
cc: Stanley L. Laskowski (3ESOO)
Christopher Day (3RC20)
Stefania Shamet (3RC13)
Tudor Davies (EPA-HQ OST)
Elizabeth Southerland (EPA-HQ OST)
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Water Protection Division
Comments on the Office of Inspector General Draft Report of Audit on Region III
Water Quality Standards, Monitoring, and Reporting
Glossary
Antidegradation Policy: This definition implied that this policy ensures that water quality
improvements are protected. This is incorrect, it is not just the improvements to water
quality that are protected, but the existing quality. It may be necessary to clarify that
"existing uses" means those uses actually attained in the water body on or after
November 28,1975.
Designated Use: We suggest the following language be substituted in order to clarify this
definition: "The use for a water body designated by State regulation that include, at a
minimum, protection of aquatic life and recreation (i.e., swimming, boating or white
water rafting), and may include such uses as drinking water protection." The minimum
uses to be protected as defined by the Clean Water Act Section 101 are limited to
"fishable and swimmable" uses. The drinking water use is required where the use actually
occurs or can, at the discretion of the State, be applied Statewide.
Notice of Deficiency: The Water Protection Division agrees with the general intent of this
term, but can not agree with the way the term is portrayed throughout this report. By
capitalizing this term in the report (where it appears outside of the Glossary), it implies
that this is a formal process under the water quality standards statute or regulation.
Whereas we agree with the recommendation from the OIG that such a letter should be
utilized to notify States of inadequacies in WQS regulations which should be changed,
failure by the Region to issue such letters should not imply a violation of statute or
regulation.
Toxic Pollutants: The second sentence should be modified to read as follows: "States are
required to adopt specific numeric criteria for these pollutants that are at least as stringent
as EPA criteria recommendations, or provide a scientifically defensible rationale for a
less stringent criteria.
Chapter 1
Page 2, first full paragraph. This paragraph should be modified to reflect our comment
on the term Designated Use above.
Page 2, third full paragraph. In the first sentence, we count 102 toxic pollutants with
EPA criteria recommendations, and we would suggest that "30 other pollutants" be
changed to
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"approximately 38 other pollutants." The use of the term "limits" can be confusing. "Limits"
is used more often to describe the number which results when criteria are implemented in
National Pollutant Discharge Elimination System (NPDES) permits, i.e., water quality-based
effluent limits. We would recommend that "limits" be changed to "criteria". In the last
sentence, in order to reflect our comments on the term Toxic Pollutants above, we recommend
that "stringent" be changed to "protective."
Chapter 2
Page 14, Recommendation 2.3. On February 4, 1998, the EPA Regional Administrator
wrote to Maryland Department of the Environment (MDE) Secretary asking that MDE
develop a schedule for completing a triennial review of water quality standards. On
March 2,1998, the Region provided a letter under the signature of Patricia Gleason, the
chief of the MD/DC Branch in the Office of Watersheds providing to MDE guidance on
24 items for the triennial review; these items included an antidegradation policy and
implementation procedures, correction of dissolved metals criteria, inclusive toxic
criteria, and review of designated uses. The Region enclosed detailed guidance material
on many of the 24 items. We also provided guidance for adoption of E.Coli and
enterococci bacteria standards and asked for clarification of MDE's current
bacteriological water quality standards. Specifically, the March 2,1998 letter asked
MDE to provide data that shows all use I waters are meeting the criteria in accordance
with 40 CFR 131.11 (a).
On March 30,1998, J. L. Hearn of MDE wrote to the Regional Administrator providing a
schedule for the triennial review; this schedule called for final adoption of water quality
standards by August 1999. Various conference calls were held with MDE to discuss their
progress on the review from April 1998 to November 1998. On September 22,1998, MDE
wrote EPA providing responses to nine of the technical items for review. On November 18,
1998, MDE announced public hearings to be held on January 19,21, and 26,1999 for the
purpose of reviewing applicable Water Quality Standards.
Page 14, Recommendation 2.4. On April 17,1998, the Region provided comment on
Maryland's draft list of impaired waters pursuant to Section 303(d) of the CWA. Among
other comments, EPA noted that 1995 STORET fecal coliform data indicated certain
waters exceeding paragraph (b) of its numeric criteria, i.e., greater than 10% exceedance
of the numeric criterion of 400 MPN/100 ml. Our comments requested clarification or an
explanation as to why those water bodies were not listed as impaired for fecal coliform.
On September 4, 1998, in a letter from Michael S. Haire, Director of Technical and
Regulatory Services Administration, MDE clarified its interpretation of its fecal coliform
standard. MDE informed the Region that it interpreted paragraph (b) of its fecal coliform
numeric criterion as requiring no less than five samples collected within a 30-day period,
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to account for variability in sampling and statistical estimation. Where less than five samples
were collected, MDE determined that the data was insufficient to support a determination that
the water violated the fecal coliform standard.
Section 303(d)(l)(A) requires the State to identify waters for which technology-based limits
are insufficient "to implement any water quality standard applicable to such waters." In
compiling its list, the State must consider existing and readily available data. Under Section
303(d)(2), EPA must approve or disapprove the list. If EPA disapproves the list, it must
identify such waters to the extent necessary "to implement the water quality standards
applicable to such waters." Maryland considered the 1995 STORET fecal coliform data, but
determined not to rely exclusively upon that data for a determination of impairment.
We believe that Section 303(d) is not an appropriate vehicle for disputing the appropriateness
of specific State water quality standards. The appropriate vehicle for rectifying concerns
regarding the appropriateness of a State water quality standard is EPA's authorities under
Section 303(c). We also believe, consistent with informal guidance provided by the national
TMDL program, that it is appropriate for the State to base its listing determination on its
interpretation of its own standard. We accepted Maryland's interpretation that a determination
of impairment should not be based on a single sample as reasonable, particularly in light of the
State's commitment, in a letter dated August 12, 1998, to allocate additional resources to
monitoring where data was insufficient to make a listing determination. We agree that follow-
up is necessary to ensure that the State follows through with this commitment.
Chapter 3
Page 15, second paragraph. Please see our comments on "Notices of Deficiency" under
Glossary.
Page 15, (1) under "Water quality standards consist of three elements". Please see our
comments on "Designated Use" under Glossary.
Page 15, (3) under "Water quality standards consist of three elements". Please see our
comments on "Antidegradation Policy" under Glossary. We suggest that the language
here be modified to read "...to ensure that existing water quality is conserved, maintained
and protected."
Page 16, first paragraph of "Missing Criteria for Toxic Pollutants". We are concerned
that the wording concerning criteria could be confusing. In the third sentence, it reads
that the Clean Water Act requires the States to have criteria at least as equal to EPA
recommended criteria. This could have two meanings. One, which we believe is not the
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OIG's intention in this context, is that the criteria has to be set equal to EPA criteria. The
other, which would be correct, is that a state must adopt criteria for all toxic pollutants for
which EPA has published criteria. If we are correct in our assumption, we suggest the
following modification: "Section 303(c)(2)(B) of the Clean Water Act requires the States
to adopt criteria for all toxic pollutants pursuant Section 307(a)(l) of the Clean Water Act
for which EPA has published criteria under Section 304(a), the discharge or presence of
which in the affected waters could reasonably be expected to interfere with those
designated uses adopted by the State." States, including Maryland, have used the lack of
evidence that specific toxic pollutants would not be expected to interfere with designated
uses to justify adoption of those criteria.
Page 17, "Incorrect Criteria for Toxic Pollutants". EPA published some updates to
criteria in 1996, and that included revisions so that some of EPA's recommended metals
criteria is now less stringent than Maryland's criteria. Because of these revisions, we
recommend that starting with the third paragraph, the following changes be made: "The
net effect is that the numeric levels set by Maryland maybe less stringent than the levels
currently recommended by EPA. Consequently, the State's standards may allow more
pollution..."
Page 18, Maryland Summary. In the last sentence, we recommend that "Notices of
Deficiency" be presented in lower case.
Page 18, Delaware. As written, this section is not entirely accurate. We recommend this
section be rewritten as follows: "In 1993, EPA identified a number of deficiencies with
Delaware's water quality standards program. After five years of discussion between the
State and the Region, many of the deficiencies still remain unresolved. In April 1998, the
Region finally sent a letter to the State disapproving 4 provisions of the standards, and
identifying a number of provisions that the Region intends to recommend that the EPA
Administrator find deficient, and promulgate replacement standards should the State not
make the recommended corrections."
Page 19, West Virginia. We believe this section misrepresents our letters to the State,
especially the use of definitive numbers of "problems". In response to the West Virginia
Water Quality Standards Triennial Review submitted October 12,1993, EPA identified 4
sections of the West Virginia standards which were being disapproved due to
inconsistencies with Federal regulations. In addition, 4 sections were conditionally
approved and 4 recommendations were made to allow the state to further clarify the
intention of these sections. Recommendations made to the state are in no way considered
deficiencies but are comments meant to assist the state in providing further clarification
and consistency.
West Virginia submitted its next Triennial Review package on August 11,1995. In our review,
EPA was able to fully remove 2 of the 4 disapproved sections from 1993. Of the
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remaining two issues, we were able to partially remove the disapprovals (e.g., the state had
adopted variance, site-specific criteria and use removal policies, but the variances and site-
specific criteria that existed in the standards regulation needed to be reviewed in order to assess
whether these provisions met the requirements of the new policies).
We are currently reviewing the State's 1998 Triennial Review submission, and at this point it is
premature to indicate what provisions will be found deficient. West Virginia did correct a
number of issues that we have brought to its attention in our letters. In addition, we are
unaware of what two deficiencies remain from 1993. We assume that one is Antidegradation,
but we did conditionally approve the State's Antidegradation policy in 1995, approval being
conditional upon submittal of an implementation procedure.
Page 20, Region III Position. There is one position that we believe was proffered during
interviews that is not reflected in this section. We suggest that the following be added:
"The Regions and Headquarters lack the resources, both in terms of personnel and
funding, necessary to undertake a promulgation when the state does not make the
required changes."
Page 20, Conclusion. In the last sentence, we recommend that "Notices of Deficiency"
be changed to lower case.
Page 20, Recommendations. In Recommendation 3.1, we recommend that "Notices of
Deficiency" be changed to lower case. Recommendation 3.2 is technically incorrect.
The Clean Water Act only requires that disapprovals be corrected within 90 days. There
is no time limit for corrections of identified deficiencies that are not disapprovals.
Chapter 4
Page 21, Triennial Reviews Chart. Two dates need to be updated in this chart. West
Virginia submitted a triennial review package in July 1998. Virginia submitted a package
in August 1998.
Page 23, District of Columbia. The District has informed us that the final triennial review
package will not be submitted until at least Fall 1999.
Page 23, Pennsylvania. It would be more correct to say that Pennsylvania personnel was
otherwise occupied working on the Commonwealth's Regulatory Basics Initiative (RBI),
which constitutes major revisions to its environmental regulations, including the water
quality standards regulation. The modifications to the water quality standards regulation
are intended to constitute a triennial review.
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Page 24, Recommendation 4.1. We believe it would be more appropriate to state that the
Administrator initiate a 303(c)(4)(B) action. By specifying initiation of a triennial
review, we neglect other options such a simply recommending that the Administrator
make a finding of deficiency and promulgate appropriate standards.
Chapters
Page 25, Summary of State Compliance Table, Water Quality Management Plan. The
report lists none of the States have Water Quality Management Plans. We strongly
disagree with this statement. The State's Water Quality Management Plan does prioritize
water quality problems, consider solutions, and recommends remedies; however, we do
not believe that it is embodied in a single document, but rather an overall process which
includes many different components. In fact, all States have recently completed Unified
Watershed Assessments as part of the Clean Water Action Plan to establish priorities in
cooperation with a broad range of State and Federal agencies.
Page 25, Summary of State Compliance Table. On July 13,1998, Maryland provided
public notice of its intent to revise its CPP and invited public comment. As part of the
Memorandum of Understanding between MDE and EPA Region III regarding Sections
303(d) and 303(e) of the Clean Water Act, MDE agreed to update its CPP and transmit it
to EPA on or before October 1,1999.
Page 27, Quality Assurance. Under Management Plans , it should be noted that prior to
FY '97, Quality Assurance Management Plans were entitled Quality Assurance Program
Plans (QAPPs), which all the states submitted back in the mid 1980's. These QAPPs
were approved by the Region III Environmental Services Division (ESD) at that time.
Sometime in the early 1990s, ESD disinvested in this review and stated that it was now
the Project Officer's responsibility to review Quality Assurance Program/Project Plans
(QAPjPs). Project Officers in all EPA programs were in the same situation and were not
provided with any training by ESD to carry out this task. Also, it was never brought to
anyone's attention that the Program Plans expired after a certain amount of time.
All of the States were represented at the Quality Assurance Management Plan training in April
of 1998. Several of the States have committed to send in their Quality Assurance Management
Plans to Diann Sims in our ESD Annapolis Office for review by mid-December. Also, she is
planning to train the EPA Project Officers sometime in the spring on how to review a Quality
Assurance Project Plan. After training of the Project Officer's is complete, she then plans to go
back to the States and train them on the same review.
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It is an inaccurate statement that the Region has been unwilling to enforce the States'
responsibilities under the Clean Water Act and Federal Regulations because it considered these
documents to be a low priority. Up until FY '98, most of the states have been sending in
Quality Assurance Project Plans to EPA for review. The Water Protection Division has been
working with Diann Sims and the Regional Quality Assurance Council since October, 1997 to
complete the above-mentioned tasks and correct the deficiencies listed in the audit report.
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74
Report No. E1HWF7-03-0160-XXXXXXX
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 111
1650 Arch Street
Philadelphia, Pennsylvania 19103-2029
SUBJECT: Draft Report of Audit on Region III Water Quality 12/17/98
Standards, Monitoring and Reporting
FROM: Stanley L. Laskowski, I
Environmental Services Di
TO: Robert G. Reed, Jr., Chief
Grants and Audit Management Branch (3PM70)
This is in response to the request from the Office of the Inspector General for comments on
their draft Report of Audit on Region III Water Quality Standards, Monitoring and Reporting
(Audit Report). In general, we agree with the recommendations to the Regional Administrator
specified in the Audit Report. However, there did appear to be a few points which could use
some clarification.
One example is Recommendation 2.1, "Delete the option that allows States to use fecal
coliform as a criteria for reporting bacteria impairments." If a State has a fecal coliform standard
already in place, it would be difficult to justify and probably legally indefensible to base
impairment decisions for both S. 303d and 305b on a different, unadopted criterion. The State
should be able to use its fecal coliform standard until a new indicator is adopted. However,
every effort should be made to get the States to update their bacteriological standards.
There also seems to be a misinterpretation on page 10 of the Audit Report. Specifically,
Delaware is reported as having assessed 651 miles, with 84 miles impaired by bacteria. The
1996 S. 305b report from Delaware actually shows 801 miles of streams assessed, with 548
miles, or 68%, impaired by bacteria. I believe the reference specified in the Audit Report is the
impairment of aquatic life support and not primary recreation.
Other issues involve Chapter 5 which discusses planning documents not prepared or updated.
It should be noted that monitoring strategies were requested as part of the S. 106 grant guidance
and not required (as specified on page 27), although several grants were conditioned to provide a
monitoring strategy. Maryland's S.I06 grant was conditioned to provide a monitoring strategy,
and we are currently working through the Performance Partnership Grant Program to induce
Maryland to provide a strategy document. A monitoring strategy was never requested from
Delaware due to the fact that they already assessed all of their waters, thereby alleviating the
need for a comprehensive strategy. Virginia has just recently submitted a new draft monitoring
strategy, and we are currently working with West Virginia to update their Watershed
Assessment Program to include a more detailed monitoring strategy. The Summary of State
Compliance Table in Chapter 5 also shows the status of submitted Quality Assurance Project
Plans (QAPP). Contrary to the information shown in the table, however, QAPP's were
Customer Service Hotline: 1-800-438-2474
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submitted by Delaware in 1991 and Virginia in 1992. This table, as well as the first sentence on
page 28, "Delaware and Virginia did not submit Quality Assurance Project Plans," should be
revised to correspond to the current status.
Overall, we agree with the conclusions and recommendations of the Audit Report. We are
continuing to work on the short-comings identified.
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Maryland Response to Draft Report
77
Report No. E1HWF7-03-0160-XXXXXXX
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78
Report No. E1HWF7-03-0160-XXXXXXX
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MARYLAND DEPARTMENT OF THE ENVIRONMENT
2500 Broening Highway • Baltimore Maryland 21224
M DE (4l°)631-3000 • 1-800-633-6101 • http://www.mde.state.md.us
arris N. Glendening Jane T. Nish
rovemor Secret*
January 29, 1999
Mr. Carl A. Jannetti
Divisional Inspector General for Audit
USEPA
Office of the Inspector General
Mid-Atlantic Division
1650 Arch Street
Philadelphia PA 19103-2029
Dear Mr. Jannetti:
Thank you for the opportunity to comment on the Draft Report of Audit on Region III Water
Quality Standards, Monitoring, and Reporting (EIHWF7-03-0160). Our detailed comments and
concerns regarding the audit report are enclosed.
Many issues raised in the audit findings are being addressed as part of Maryland's current
Triennial Review and other on-going regulatory processes. Other issues raised in the audit
findings are based on incomplete information or incorrect interpretations of the information
provided to the auditors and clarification is offered here.
The enclosed response to the draft audit report was developed in coordination with the
Maryland Department of Natural Resources (DNR) and represents the combined comments of
both agencies.
We hope that this letter and the enclosed detailed responses will be incorporated in the audit
report and forwarded with the finding of the OIG to Region III. If you have any questions about
our comments or plans, please call me at 410-631-3680 or Richard Eskin, of my staff at 410-631-
3691.
Sincerely,
Michael S. Haire, Director
Technical and Regulatory Services Administration
Enclosures
cc: Jane Nishida, Secretary, Maryland Department of the Environment
Robert Hoyt, Assistant Secretary, Maryland Department of the Environment
J.L. Heara, Director, Water Management Administration
Paul Massicott, Director, Resource Assessment Service, DNR
Richard Eskin, Program Manager, Technical & Regulatory Services Administration, MDE
PY Users 1-800-735-2258 A
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Response by the Maryland Department of the Environment to the Draft Report of Audit on
Region III Water Quality Standards, Monitoring, and Reporting
Audit Report Number EIHWF7-03-0160
Chapter: Bacteria in Water Not Assessed or Reported
There were several findings in this section related to adoption of EPA recommended criteria for
bathing beaches, proper in implementation and interpretation of standards, differences between
the Water Quality Inventory Report (the Report) and the List of Impaired Waters (the List), and
whether waters with data not adequate to apply the standard should be listed as impaired. The
section closed with recommendation to modify the standards or the current implementation and
to revise the list.
Most of these issues have been addressed by better coordination and communication between
MDE and DNR in the development of the Report and List, or are being addressed through the
Triennial Review. We agree that the bacteriological criterion needs to be revised and that
monitoring for bacteria needs to be modified to better implement the standard. We disagree with
the assertion that Maryland's standards are less protective than those recommended by EPA and
with the finding that additional waters should be added to the List of Impaired Waters.
Finding: Maryland did not adopt the federal bacteriological criteria.
Response: Maryland does not agree with the auditors' statement that Maryland's standard is less
protective than the EPA recommended criteria. Only a few states have adopted EPA's 1986,
Ambient Water Criteria for Bacteria, while the rest continue to use a fecal coliform standard,
similar to Maryland's.
First it is important to note that EPA did not intend that the recommended criteria using the
enterococcus and E. coli indicators be implemented in shellfish harvesting waters. EPA states
"With the exception of shellfish harvesting waters which must relate to shellfish sanitation
guidelines and FDA marketplace requirements, EPA believes that all other waters that are
classified for primary contact could benefit from the application of the revised criteria" (Fed.
Reg, Vol. 51 No. 45 p. 8013). Consequently, the areas in Maryland where this recommended
criteria might be applicable are those waters designed as Use I, III, or IV waters. We are looking
at the appropriateness of adopting such criteria for those waters during the current triennial
review. The FDA requires that all states which deal in interstate commerce of shellfish use the
fecal coliform standard that Maryland currently has in its regulations.
Furthermore, the beaches at which EPA conducted its Studies to develop the enterococcus, and
E. coli indicators recommended in the 1986 report were subject to raw sewage from a plant
serving a population of 100,000 people. Similar situations do not occur anywhere in Maryland
since at least secondary and nearly always tertiary treatment has been implemented at Maryland
plants. Given Maryland's record with the absence of bathing beach illness and the fact that the
enterococcus and E. coli indicators have not been widely adopted by other states, it is not clear
that the public health would be better protected by using these new indicators.
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Maryland's current fecal coliform standard and EPA's 1986 criteria both utilize nonpathogenic
organisms consistently present in the feces of all warm-blooded animals. As surrogates of
pathogenic organisms, use of either indicator has similar limitations. Maryland has emphasized
prevention as the most critical component to protect public health. The sanitary survey
component of Maryland's regulations is designed to prevent and abate pollution sources of
human health significance. In addition, the OIG auditors may not have understood that, in
addition to sanitary surveys conducted by this Department for shellfish, local governments have
delegated authority for bathing beaches and monitor for fecal coliform and conduct sanitary
surveys when elevated counts are observed. In addition, sanitary surveys are conducted,
generally by local health departments, to evaluate the presence of failing septic systems and the
need for sewer hookups.
However, through the Triennial Review, Maryland will explore the feasibility of adopting a fecal
coliform standard using the enterococcus and E. coll indicators in primary contact waters. MDE
will discuss this issue with the County Environmental Health Directors since the counties have
delegated authority for permitting beaches. MDE will use their input and experience to determine
whether to implement these standards.
Finding: Maryland did not properly implement its own standards, or follow EPA guidance
when assessing and reporting impaired water bodies.
Response: Maryland has consistently applied its current interpretation of the bacterial water
quality regulations for many years, with the approval of EPA. Given Maryland's excellent public
health record related to both bathing beaches and shellfish, this program has been protective.
Nevertheless, based on comments received from EPA in its review of the 1998 List of Impaired
Waters, MDE has agreed with EPA that a review of the bacterial contamination regulations and
bacterial sampling protocols is warranted and will be pursued in the ongoing Triennial Review
process.
Maryland's fecal coliform standard is composed of both a numerical measurement and a sanitary
survey. The numerical measurement is determined by estimating the Most Probable Number
(MPN) of fecal coliform. The MPN is not a direct count, but is a statistical estimation subject to
a high degree of variability. The water quality standard requires a minimum of five samples
taken during a 30-day period in order to account for the inherent variability of the indicator. In
addition, the regulations include a provision whereby a sanitary survey that confirms the absence
of a source of human pathogens can be used to supercede fecal coliform measurements. Given
the inherent variability of the fecal coliform indicator, Maryland has historically relied on both
sanitary surveys and fecal coliform measurements for decisions on closing the water for primary
contact uses. If the closure is related to a technical problem (e.g. failing septic systems, cracked
sewer line), steps are taken to correct the problem. If however, the technology-based limitations
cannot correct the violation of the bacteriological standard, this closed water segment is then
determined to be impaired and added to the State's 303(d) list. As noted above, although this
Department does not do statewide sanitary surveys, except for shorelines, local health
Departments do conduct the surveys, both for enforcement of bathing beach standards and to
survey needs with respect to septic systems.
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It is unclear to what the OIG is referring in reference to the statement that Maryland "[did not]
follow EPA guidance when assessing and reporting water bodies." If this statement refers to the
use of the fecal coliform standard, as noted above, Maryland, and most other states have not
adopted EPA guidance related to their choice of indicator organisms. If the OIG means that
Maryland disagreed with the Region's interpretation of the data, that is correct. This issue is
explained more fully below.
Finding: Two state agencies use different interpretations of the State's criteria to
determine if water bodies are impaired. However, neither interpretation implements the
State's criteria as written. As a result Maryland did not report 62 water bodies that had
elevated bacteria levels on its Assessment Report or 185 bodies that had elevated bacteria
levels on its Impaired list.
Response: MDE is responsible for the submission of Maryland's official List of Impaired
Waters that is submitted to EPA as required by Section 303 (d) of the Clean Water Act, following
a thorough public review procedure. Although MDE consults with DNR in the development of
the list, MDE is the delegated agency in defining water quality limited segments (i.e.,
impairments) for Maryland. In the past, there has been some inconsistency between the agencies'
interpretation of the criteria in developing the Section 305(b) Water Quality Assessment report
and the 303(d) List. We are currently addressing the issue so that it will not be a problem in the
future.
There also seems to be some confusion in the OIG report with regard to bacteriological
standards. The audit excerpt cites the criterion for the contact recreation use (COMAR
§26.08.02.03-3A(1)) and then goes on to discuss DNR's interpretation for "permitted beaches"
which is addressed separately in COMAR (§26.08.09.06). The excerpt then describes the
process used by approving authorities to interpret the State's water contact criterion for permitted
bathing areas. The approach taken by EPA OIG is incorrect in that it confuses two different
standards. In most cases the approving authorities for bathing beaches are the County Health
Departments, which do both the sampling and the sanitary surveys before opening beaches.
Beaches are closed if they are impaired based upon the standard found at COMAR §26.08.09.06.
Finding: The Region notifed Maryland of 185 water bodies contaminated for bacterial
contamination. When Maryland asserted that there was insufficient data for these water
bodies to be added to the list, the Region acquiesced with the State's promise to do
additional testing.
Response: MDE and the Region discussed this issue extensively. We went through the Region's
concerns on a case-by-case basis and provided a decision rationale or justification in each and
every case (enclosure). MDE conceded locations where the case could be made that an
impairment exists and added these waters to the 1998 303(d) list. The Region conceded
locations where the case for an actual impairment was not supportable. This was a positive
decision that has lead to improvements in Maryland's program, completely protected public
health, yet did not inappropriately list water body segments as impaired if they were not.
Consequently, given the thorough analysis provided, we strongly disagree with the conclusion
that additional waters should be added at this time.
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Chapter: Deficient Standards Were Not Corrected
Finding. Deficiencies in Maryland's water quality standards-Missing criteria for toxic
pollutants. According to PCS there are 62 toxic pollutants listed in Section 307(a) that are
discharged, or are present in State waters and can reasonably be expected to interfere with
designated uses for which dischargers are required to test, but Maryland has numeric
criteria for only 20 of those pollutants.
Response:
Maryland has evaluated the list of substances provided by the OIG. Of the 62 substances alluded
to by the OIG, Maryland has water quality standards for 24 substances. For those substances for
which Maryland has not adopted water quality standards, MDE generally employs EPA's
recommended criteria in their decision making process. For a few facilities, MDE uses its best
professional judgement for those substances for which no Maryland water quality standard or
EPA recommended criteria exist. For such substances, MDE will generally evaluate the need to
develop criteria in accordance with environmental and public health needs and the requirements
of the Clean Water Act.
Furthermore, the OIG may have misinterpreted Section 307(a) for the following reasons;
1. Just because a permit requires monitoring for a pollutant, it does not mean the pollutant is
always present. Sometimes we require monitoring by a permittee to verify that a particular
pollutant is not present.
2. If the pollutant is present in an individual facility's discharge, the law does not automatically
require the adoption of a criterion. Federal regulations are specific that such action must take
place only if priority pollutant toxics are adversely affecting water quality or if they are
present at a level, to warrant concern (CFR 131.1 l(a)(2)). Professional judgement must be
applied to make that determination and confirmed by monitoring.
3. If a pollutant is limited in a permit, it does not mean it is a concern to water quality in
Maryland waters. It may be a technology-based limit required under federal guidelines for
that industry even if the pollutant is not known to be present in the permittee's wastewater or
Maryland waters.
4. EPA has criteria for 99 priority pollutant toxic substances. Only 30 of these include aquatic
life criteria. Mary land has criteria for 24 of these 30 substances.1 The remaining six are
pesticides that are not in our permitted discharges based on long-term experience with our
dischargers.
"PCB" in Maryland regulations applies to each of the seven PCB priority pollutants.
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5. Sixty-nine of the 99 substances have criteria only for human health (drinking water and fish
consumption). Almost all of these are for organic substances. While Maryland has been very
conservative by adopting criteria for most of the priority pollutants with aquatic life criteria,
we have not found evidence indicating a need to adopt as many for the organic pollutants
based upon human health concerns. Maryland's water quality monitoring experience indicates
organics are usually at nondetectable levels. Even if an organic is detected in a water sample,
human health criteria involve less stringent averaging periods than the aquatic life criteria (an
annual average for human health criteria versus a four-day average for chronic aquatic life
criteria, for example).
Finding: Deficiencies in Maryland's water quality standards-Maryland's numeric criteria
for 15 metals are set at incorrect levels (the State set criteria at numeric Levels that EPA
recommended for "total recoverable" but adopted these as "dissolved") that are less
stringent than the levels recommended by EPA.
EPA Region III approved Maryland's water quality standards it 1990. Then, EPA published in
the Federal Register an "interim final rule, notice of data availability and request for comments"
in May 1995. EPA published the most recent final guidance on metal conversion factors in
December 1998.
Consequently, the use of the conversion factors, and subsequent change (if any) of Maryland's
water quality standard is being currently addressed as part of Maryland's current Triennial
Review and will then undergo the scrutiny of the public participation process. Given these facts,
we believe that the OIG's conclusion that Maryland is deficient is premature and does not take
into consideration the regulatory process, which is required under the Clean Water Act.
Finding: Maryland does not have an Antidegradation policy including an ONRW.
Response: MDE will address the designation of Outstanding National Resource Water during
its current Triennial Review with EPA and full public participation.
Finding: Maryland Lacks Designated Uses for wetlands and estuaries.
Response: The audit findings are incorrect that there is a lack of designated uses for wetlands
and estuaries. Both are waters of the State and as such are protected for Use I. COMAR
§26.08.01.02A(103) describes "Waters of this State" to include the Chesapeake Bay (which is,
estuarine) and tidal and nontidal wetlands.
"Press Water, Estuarine, and Salt Water Boundaries" are established in 26.08.02.03-IB. Uses are
generally assigned in COMAR §26.08.02.07A: "All surface waters of this State shall be
protected for Use I, which includes water contact recreation, fishing and protection of aquatic life
and wildlife. Therefore, Use I is explicitly designated for both tidal and nontidal wetlands, and
since the Chesapeake Bay is largely estuarine, to estuarine waters as well.
Uses are specifically and explicitly assigned in COMAR §26.08.02.08 for example:
§26.08.02.086 sub-basin 02-13-01; Coastal Area (2) Use II: All
portions of the territorial seas and estuarine portions of bays and
tributaries except... (emphasis added)
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In summary, the designated use for wetlands is Use I and for estuaries is Use II (shellfish
harvesting) and Use I. In addition we will evaluate the need to refine these uses during the
current Triennial Review.
Chapter: Missed opportunities
Finding: Maryland is five years late in carrying out Its 1993 Triennial Review of Water
Quality Standards.
Response: Due to the litigation that developed challenging the legality of the regulations
adopted during the last Triennial Review and the subsequent revisions to water quality
regulations, the schedule was disrupted with EPA's full knowledge. We anticipate that future
Triennial Reviews will be, held in a timely manner. Maryland has initiated its current triennial
review in response to a request from Region III. Hearings for the public involvement component
began in mid-January, and a review in response to Region Ill's specific concerns is well
underway.
Chapter: Planning Documents Not Prepared or Updated
Finding: Continuing Planning Process documents (CPP, Water Quality Management Plan,
Monitoring Strategy and Quality Assurance) have not been prepared or maintained.
Response: CPP has been adopted in accordance with the requirements of the Clean Water Act.
MDE provided public notice on July 13,1998 that the CPP is being revised with public
participation. We anticipate that such revisions and review of the CPP will occur periodically in
future years.
MDE will perform chemical and physical monitoring in accordance with the Cycling Strategy.
Numerous monitoring plans exist and incorporate QA/QC protocols. Past 305(b) Reports have
described the monitoring programs that produced the data used. There are well documented
monitoring plans for the Chesapeake Bay and many tributaries. Detailed monitoring plans are
available for the Lower Delmarva Peninsula and the Upper Bay as part of the Watershed Cycling
Strategy. Plans for the remaining parts of the State will be developed as the Watershed Cycling
Strategy moves on to those areas.
DNR has been working to update the State's Water Quality Monitoring Strategy to incorporate
the latest information about the State's diverse monitoring approach. Continuing and substantial
change's in these programs have occurred recently and need to be addressed, including the
transfer of monitoring programs between State agencies, the addition of regional TMDL- based
monitoring and new Pfiesteria monitoring efforts as well as the proposed National Estuary
program monitoring program. While each water quality monitoring effort has unique goals,
MDE and DNR have had formal meetings to coordinate our respective monitoring efforts and
Quality Assurance plans.
-------
Suspected Substance:
Fecal Coliform
Notes: (l)Restricted as precautionary measure and not due to poor water quality data. These
are areas downstream from a Waste Water Treatment Plant (WWTP) that meet all water
quality requirements. These areas, however, are restricted to shellfish harvesting
because of the potential for treatment system failure. While water quality in these areas
support the designated use, the Food and Drug Administration requires as a
precautionary measure. They are not indicative of a violation of the water quality
standards. These areas are monitored by MDE and meet the water quality standard for
fecal coliform. If monitoring and compliance data indicate that the plant is not
functioning properly, corrective actions would be immediately initiated. Since no
impairment exists, the development of a TMDL is not necessary under these
circumstances.
(2) Not listed because there is insufficient data to determine a violation of water quality
standards is the same logic as listed above for Table 1.
Watershed
02120101
02120201
02120202
02130206
02130207
02130303
02130305
02130308
02130404
02130404
02130405
02130503
02130601
02130603
02130604
02130606
02130610
Water Body Segment
Atlantic Ocean
Lower Susquehanna River
Deer Creek
Tangier Sound
Big Annemessex River
Wicomico Creek
Nanticoke River
Transquaking River
Choptank Marine Beach
Lake Bonnie, Choptank
Tuckahoe Creek
Wye River
Lower Elk River
Upper Elk River
Back Creek
Big Elk Creek
Sassafras River
Justification for listing or not listing
Not listed. Restricted as precautionary measure and
not due to poor water quality data (WWTP).
Not listed because there is insufficient data to
determine a violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. Restricted as precautionary measure and
not due to poor water quality data (WWTP).
Not listed. Restricted as precautionary measure and
not due to poor water quality data (WWTP).
Not listed. There is insufficient data to determine a
violation of water quality standards.
Added to MD 1998 303 (d) list.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Added to 1998 303(d) list.
Swim closure is though to be due to sewage discharge
from WWTP and therefore should not apear on 1998
303(d) list.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Already on 1996 303(d) list.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
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Watershed
02130701
02130702
02130703
02130704
02130706
02130705
02130802
02130804
02130805
02130806
02130901
02130902
02130903
02130903
02130904
02130905
02130906
02130907
02130908
02131005
02131101
02131102
02131102
02131103
02131104
02131105
Water Body Segment
Bush River
Lower Winters Run (Bush River)
Atkisson Reservoir Drainage
Bynum Run
Swan Creek
Aberdeen Proving Grounds
Lower Gunpowder Falls
Little Gunpowder Falls
Loch Raven Reservoir Drainage
Prettyboy Reservoir Drainage
Back River
Bodkin Creek
Patapsco River
Marley/Rock/Fumace Creeks
Jones Falls (above Lake Roland)
Gwynns Falls
Mainstem/Lower North Branch
Patapsco River
Liberty Reservoir Drainage
Cascade Lake
S. Branch Patapsco
West Chesapeake Bay
Lower Patuxent River
Patuxent
Patuxent River above Ferry
Landing
Patuxent River Western Branch
Patuxent Mainstem-Rt. 214 to
Rocky Gorge
Little Patuxent River
Justification for listing or not listing
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Added to 1998 303(d) list.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. Latest data show no violations.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Added to 1998 303(d) list.
Added to 1 998 303(d) list.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
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Watershed
02131108
02139997
02139998
02140101
02140102
02140107
02140108
02140109
02140110
02140111
02140201
02140202
02140203
02140205
02140206
02140207
02140208
02140301
02140302
02140303
02140304
02140305
02140501
02140502
02140504
02140508
Water Body Segment
Triadelphia Reservoir Drainage
Middle Chesapeake Bay
Lower Chesapeake Bay
Potomac River - mouth to Smith
Point
Potomac-Marshall Hall to Smith
Pt.
Gilbert Swamp
Zekiah Swamp
Port Tabacco River
Nanjemoy Creek
Mattawoman Creek
Potomac - Marshall Hall to Chain
Bridge
Potomac - Monacacy River to
Chain Bridge
Piscataway Creek
Potomac R., Anacostia
Rock Creek
Cabin John Creek
Seneca Creek
Potomac River - Shenandoah to
Monocacy
Lower Monocacy River
Upper Monocacy River
Double Pipe Creek
Catoctin Creek
Potomac River - hancock to
Shenandoah River
Antietam Creek
Conococheague Creek
Potomac River - N Branch
Potomac to Hancock
Justification for listing or not listing
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. Restricted as precautionary measure and
not due to poor water quality data (WWTP).
Not listed. Restricted as precautionary measure and
not due to poor water quality data (WWTP).
Not listed. Shellfish harvesting area approved.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. Shellfish harvesting area approved.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a '
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
-------
Watershed
02141001
02141003
02141004
05020202
05020204
Water Body Segment
Lower North Branch Potomac
River
Wills Creek
Georges Creek
Little Youghiogheny River .
Casselman River
Justification for listing or not listing
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
Not listed. There is insufficient data to determine a
violation of water quality standards.
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90
Report No. E1HWF7-03-0160-XXXXXXX
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APPENDIX B
DISTRIBUTION
Headquarters
Office of Inspector General - Headquarters (2421)
Assistant Administrator for Water (4101)
EPA Library (3404)
EPA Region III
Regional Administrator (3RAOO)
Director, Water Protection Division (3WPOO)
Director, Environmental Services Division (3ESOO)
Chief, Office of Watersheds (3WP10)
Chief, Office of Ecological Assessment and Management (3ES10)
Regional Library (3PM50)
Other
Office of Inspector General - Divisional Offices
General Accounting Office
91
Report No. E1HWF7-03-0160-XXXXXXX
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