CALIFORNIA ASSOCIATION of SANITATION AGENCIES

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1 CALIFORNIA ASSOCIATION of SANITATION AGENCIES th Street, Suite 595 Sacramento, CA TEL: (916) Submitted via Federal Rulemaking Portal Water Docket - EPA Docket Center Environmental Protection Agency Mail Code: 4203M 1200 Pennsylvania Avenue NW Washington, DC Attention: Docket ID No. EPA-HQ-OW Subject: Docket ID No. EPA-HQ-OW Comments on Effluent Limitations Guidelines and Standards for the Dental Category The California Association of Sanitation Agencies (CASA) appreciates the opportunity to provide comment to the U.S. Environmental Protection Agency (USEPA) on the proposed Effluent Limitations Guidelines and Standards for the Dental Category, Docket ID EPA-HQ- OW (hereafter proposed rule or dental amalgam rule ). CASA is a statewide association representing more than 100 municipalities, special districts, and joint powers agencies that provide wastewater collection, treatment, clean energy and water recycling services to millions of Californians. CASA supports the efforts of the USEPA to control the discharge of mercury to sanitary sewer systems as a means of protecting water quality. However, the proposed rule relies on a one-size-fits-all strategy that is not appropriate for a service sector comprised of more than 120,000 facilities across the country, more than 25,000 of which are estimated to practice in California. The vast majority of these dental practices are small businesses. Local agencies are better suited to develop control strategies for this type of business that account for the resources available and the degree of control that is warranted, and many already have robust programs to address dental amalgam. CASA acknowledges that USEPA developed the proposed rule using a different strategy than the traditional Categorical Industrial User elements. However, CASA is concerned that the proposed rule was developed with limited involvement from the Publicly Owned Treatment works (POTW) community regarding: (1) the need for federal control of dental mercury and the effectiveness of the proposed approach in achieving meaningful water quality improvements; and (2) the strategies to efficiently and effectively control dental mercury discharges to POTWs which have very diverse needs to actually control mercury sources to their influent. The proposed dental amalgam rule will significantly impact CASA member agency operations, including pretreatment programs, with minimal to no environmental benefit. CASA strongly recommends that USEPA withdraw the proposed rule and work with POTWs from across the country to develop criteria covering when and how to implement dental amalgam programs. If USEPA decides to continue with adoption of the proposed rule, the comments provided below identify the concerns with proposed rule s elements and outline essential Ensuring Clean Water for California

2 changes needed to make the rule more effective without inefficiently directing significant limited local public resources with little to no environmental benefit. BACKGROUND CASA member agencies represent a cross section of POTWs with experience implementing dental amalgam control programs. For example, agencies in the San Francisco Bay Area have been implementing dental amalgam control programs since their Regional Water Quality Control Board (RWQCB) adopted a Mercury Watershed NPDES Permit in 2007 to implement the San Francisco Bay Mercury TMDL. Other CASA member agencies in other parts of the state have developed and implemented amalgam separator programs either voluntarily or in response to a regional need to control mercury in the receiving water. These programs have been successful in addressing mercury from dental amalgam and are tailored to local needs and requirements. Other agencies do not have established amalgam programs due to the fact that mercury is not a significant issue in their region or source control measures other than dental amalgam control programs are being implemented effectively. Unfortunately, the proposed rule has the potential to adversely impact both CASA member agencies that have existing programs and those that do not. If the proposed rule is adopted, POTWs with existing dental amalgam control programs will have to redirect resources to implement the standards in the proposed rule without achieving any meaningful reduction in mercury to their system. For those agencies that have not developed a dental amalgam program, agencies generally do not have a problem meeting mercury limits for their effluent or biosolids, or they do not have mercury limits due to the lack of reasonable potential for mercury impairment. The POTWs without programs in these regions will have to expend significant resources to develop and implement new programs in their service areas, programs that are expected to achieve nominal reductions in mercury discharged to their systems. The scope of the rule itself is broad and could have a significant impact on agency resources, regardless of whether a program is already in existence. Some agencies have thousands of dental practices in their service area, and for those agencies the allocation of resources required by the proposed rule is daunting. The range of impacts that can be ascribed to implementation of the proposed dental amalgam control program creates different challenges for each CASA member agency, but regardless of the degree of program implementation, the same conclusion is reached: the proposed rule will require a significant redirection of public resources to implement the new standards with minimal to no environmental benefit. Moreover, given trends in the dental industry and expected reduction in mercury loads due to technology and patient preference, it is not clear this rule would accomplish much in the way of environmental benefit. The national trend among dental practices for more than 10 years has been and continues to be the placement of fewer amalgam fillings while the placement of non-amalgam, or composite resin, fillings is increasing. Most dental practices have elected to only place composite filling materials. If this trend in the dental industry of reducing the use of amalgam continues, the mercury loading to sanitary sewer systems will be substantially reduced, potentially to negligible levels. This alternative form of pollution prevention measure (process input substitution) will ultimately render the use of amalgam separators obsolete. 2

3 Finally, the proposed rule focuses too heavily on individual dental practices and not on the industry as a whole. In their individual capacity, dental practices do not discharge significant amounts of mercury to a sanitary sewer system, but because of the relatively large number of dental practices, they can collectively discharge up to 50% of a POTW s influent mercury in some regions. This cumulative contribution should be used as a basis for designing strategies to regulate mercury discharges from dental practices. Unfortunately, the proposed rule places too much emphasis on regulating individual dental practices, and will result in the allocation of significant resources to controlling a relatively small contribution of mercury, which will not yield any net environmental benefit. GENERAL COMMENTS AND RECOMMENDATIONS 1. Imposing New Standards and Requirements for Dental Mercury Control Programs Will Be Counterproductive in Some Regions ISSUE: Strict control of dental mercury is a local issue to be addressed by local agencies in consideration of local factors, and in many places the promulgation of a strict, one-size fits all federal standard is not needed to effectively address the issue. The need to control mercury from dental practices varies widely among POTWs as each agency has different needs primarily driven by the receiving water of their treatment plant(s). Some POTWs do not discharge to mercury impaired waterbodies (e.g. ocean dischargers), while others already conduct advanced tertiary treatment which removes 96-99% of the mercury discharged to the treatment plant. Implementing a federally prescribed dental mercury control program in these regions will likely not result in any measurable environmental benefits. In areas where control programs can make a difference, wastewater agencies are already engaged in extensive efforts. For example, in the San Francisco Bay Area there is a Mercury TMDL in place which has driven the imposition of stricter control measures for dental amalgam. These measures have resulted in significant successes in reducing mercury in agency influent, effluent, and biosolids. Despite these successes, the proposed rule will require CASA member agencies to redirect significant resources to implement a new program, yet it is not clear that these changes will yield any reductions in mercury loading from dental practices. The rule simply does not make sense for agencies that have already implemented mandatory dental amalgam separator programs. CASA RECOMMENDATION: CASA recommends that USEPA withdraw the proposed rule and instead develop criteria and guidelines for local agencies to use when developing their own dental amalgam programs, including requiring use of amalgam separators, when empirical data demonstrates the need to protect receiving water quality. 2. Trends in the Dental Industry Make the Current Need for Federal Standards Unclear ISSUE: Given the overall trend toward reductions in amalgam filling placements, the need for federal standard is unclear. Implementing the proposed rule will require dental practices to expend significant funds both upfront and on an annual basis. The proposed rule will also require 3

4 POTWs to either expend additional funds to develop capacity to implement the program, or to redirect existing resources away from traditional pretreatment program activities or other higher impact pollution prevention program activities to address dental amalgam. This expenditure of funds and allocation of resources may not be effective given that mercury discharges from dental practices are anticipated to resolve the problem through process modifications in the coming years. Phasing out the use of amalgam fillings altogether would render the need for amalgam control programs obsolete in a fairly short time period. CASA RECOMMENDATION: CASA recommends that USEPA withdraw the proposed rule and take steps to encourage, if not require, the phasing out of amalgam filling placements over time consistent with the protocols from the Minamata Convention on Mercury (referenced in the proposed rule) that promote global mercury reductions. Alternatively, USEPA should substantially modify the proposed rule to: (1) incorporate CASA s specific recommendations below; (2) periodically evaluate the need for federal standards governing dental amalgam in the future, and (3) take action to rescind the standards if the problem is resolved through the current trend in process modifications. 3. Imposition of the Proposed Rule on Agencies Without Existing Dental Amalgam Programs Poses a Potentially Significant Financial Burden The proposed rule assumes the state entity will implement the prescribed program for dental practices located in service areas of POTWs that do not have an approved pretreatment program. Communications with the Regional Water Quality Control Boards (RWQCBs) across California indicate that they do not have the resources to take on this responsibility, and while the State Water Resources Control Board (SWRCB) indicated it would consider taking responsibility to implement the rule, it would also consider requiring the affected POTWs to develop approved pretreatment programs. Some of CASA s member agencies do not have approved pretreatment programs, and we are concerned about the potential impact to POTWs in this situation. It would be a substantial burden on these agencies to develop the elements of an approved pretreatment program as well as finding the resources to implement the proposed rule for a relatively small number of dental practices (fewer than 5-10 in many cases). expand the exemptions to include dental practices in POTW service areas that do not have an approved pretreatment program. Alternatively, EPA should modify the proposed rule to clearly state that the standards apply to dental practices in service area of POTWs without approved pretreatment programs, but that the required documents must be submitted to the EPA regional office that covers their location. 4. Conversion of Dental Practices From DIU to SIU is Unnecessary and Would Impose a Substantial Burden on POTWS Implementing Pretreatment Programs ISSUE: The proposed rule requires a dental industrial user (DIU) to be reclassified as a significant industrial user (SIU) under certain circumstances. While we appreciate USEPA s acknowledgement that dental offices should not automatically be treated the same as other SIUs for pretreatment purposes, the fact that they could ultimately be categorized as SIUs is not 4

5 necessary and could create a substantial burden on POTWs required to implement the standards. Current federal regulatory requirements governing POTW regulation of SIUs, which are not modified by the proposed rule, require POTWs to issue a control mechanism (permit), conduct sampling a minimum of twice annually, and conduct at least an annual inspection among other standards. Having to conduct these tasks for any number of dental practices will create a substantial burden on POTWs without achieving any net environmental benefit. POTWs will be forced to either hire additional staff to conduct the work associated with this reclassification when needed, or redirect existing resources from traditional pretreatment program activities (e.g. CIU regulation, FOG control) or pollution prevention/resource recovery/public outreach programs. Laboratory resources at POTWS could also be directly impacted in some cases. This redirection of resources is unwarranted and will produce little in the way of water quality benefits. Moreover, conducting compliance sampling at dental practices (as would be required if they are treated as SIUs) poses significant logistical barriers, and requiring a dental practice to establish an appropriate sampling location would be costly for the dental practice. The proposed rule should instead refer to a POTW s Enforcement Response Plan (ERP) as the mechanism to ensure compliance with standards. There is no environmental benefit associated with requiring POTWs to process the non-compliant status of dental practices as Significant Non-Compliance (SNC). The Pretreatment Streamlining Rule limited the publication of SNC to SIUs, and therefore removing references in the proposed rule related to reclassifying DIUs as SIUs will remove the requirement to publish DIUs that are non-compliant during a given year. Finally, the proposed rule does not clearly identify the process a POTW must follow in order to reclassify a dental practice that has been classified as SIU back to DIU status. For example, it is not clear whether all SIU standards need to be met before this reclassification can be processed. If not, the benefit of having this reclassification standard in the rules is even less clear. In addition, this reclassification poses significant logistical problems for certain dental practices. As one example, for dental practices with shared amalgam separators, it is not clear whether all contributing dental practices would considered to be SIUs if the one practice that assumed responsibility for the separator does not comply with the standards. It is also unclear how this rule would apply to mobile dental practices, and whether that mobile practice would be considered a SIU in one POTW s service area, or in all service areas where it practices. CASA RECOMMENDATION: The proposed rule should delete all references to reclassifying DIUs as SIUs, including the requirement for POTWs to process non-compliance by DIUs as SNC. 5. The Proposed Rule is Ambiguous in Many Respects and Requires Clarification ISSUE: The proposed rule has is too ambiguous in many areas and leaves too much room for interpretation after adoption. For example, POTWs with approved pretreatment programs are routinely reviewed through the Pretreatment Compliance Inspection and Audit (PCI/PCA) process. One element of the traditional PCI/PCA process is to determine if a POTW is properly classifying IUs under the appropriate federal categorical standards. The large number of dental practices and the transient nature of this service sector create liability exposure for POTWs as 5

6 POTWS could receive findings in a PCI/PCA report for not maintaining a completely accurate DIU inventory, or not reclassifying a DIU to SIU under certain circumstances. Such findings will require POTWs to allocate scarce resources to maintaining a current up to date DIU inventory, or to respond to PCI/PCA findings without gaining any environmental benefit. Several other similar examples are provided n the specific comments below. CASA RECOMMENDATION: CASA recommends that USEPA modify the rule to ensure that currently ambiguous standards (examples of which are identified below) are clarified to avoid multiple varying interpretations in different USEPA regions and states. SPECIFIC COMMENTS AND RECOMMENDATIONS 1. The Effective Date of the Proposed Rule Should be Identical for All POTWs: Three Years After the Final Rule is Published ISSUE: The effective date of proposed rule should be the same for all affected POTWs. Currently, the proposed rule has an effective date three years after the final rule is published, with pretreatment standards for new sources (PSNS) apparently effective immediately. It is unclear whether POTWs with existing dental amalgam control program are expected to implement the standards immediately, or if a POTW that implements a new program in advance of the effective date will be expected to comply with the standards. Early action should not be penalized or disincentivized. clarify that any compliance assessment of POTWs using the PCI/PCA or other processes shall be three years after the final rule is published consistent with the effective date. 2. Issues With Maintaining a DIU Inventory and Ensuring Accuracy of Submitted Data Should Not Result in Adverse Consequences for a POTW ISSUE: A POTW should not be considered deficient for minor issues with maintaining a DIU inventory. Developing and maintaining a DIU inventory takes substantial POTW resources, which can be a very substantial effort for agencies with larger service areas. This effort can become more complicated for POTWs with multi-jurisdictional agreements. The large number of dental practices and the transient nature of that industry complicates the inventory maintenance process. It is common for an agency to discover that a new dentist has taken over a previously existing practice when an annual compliance report that was mailed to the prior dentist is returned by the new dentist. During this period of time where ownership records may not be entirely accurate, it is not clear whether the POTW would be considered deficient for not maintaining an accurate DIU inventory. clarify that a POTW needs to have a system in place by the effective date of the rule to establish and maintain a DIU inventory, but that POTWs will not be considered deficient for individual 6

7 dental practices are not in the POTW s DIU inventory, or if the inventory is not current with ownership changes. ISSUE: The standards applicable to applications (BMR) and Initial Compliance Reports should be functional and POTWs should not be responsible for the accuracy or timeliness of the documents base don information provided by individual dental offices. For example, it is not clear why certain information is required to be included on the required submittals (e.g. dental license number), and inclusion of extraneous information should be avoided in the standards. POTWs are not expected to issue permits or conduct routine inspections in the proposed rule, and therefore a requirement that POTWs ensure information on the required documents is accurate or that they were submitted in a timely manner is onerous and unnecessary. clarify that DIUs are responsible for the accuracy and timeliness of documents required to be submitted, and that POTWs are only responsible for receiving the documents and taking enforcement when the POTW becomes aware that the documents were not submitted in compliance with the standards. 3. POTWs With Existing, Certified Dental Amalgam Programs Should be Considered Functionally Equivalent to Those Under the Proposed Rule ISSUE: POTWs with existing dental amalgam programs that have obtained applications and initial compliance certifications should be considered functionally equivalent to those prescribed in the proposed rule, even if the documents did not contain all the information required in the proposed rule. clarify that the application and initial compliance certification documents obtained by POTWs with existing amalgam separator programs are functionally equivalent to the documents specified in the proposed rule. 4. Failure of a DIU to Submit Required Documents Should Not Necessitate Full Site Inspections by a POTWS in Order to Return to Compliance ISSUE: The requirement for a POTW to inspect a DIU within 90 days of the DIU being in noncompliance with submitting required documents creates a burden to the POTW without any environmental benefit. The proposed rule does not require site inspections unless a DIU does not file paperwork in a timely manner. However, the POTW will have to reclassify the DIU as SIU if the POTW does not complete a site inspection of the dental practice within 90 days of the noncompliant event, even if the DIU has filed the original. The proposed rule does not clarify if the POTW is only required to inspect for the non-compliant event (late submittal of a document that the POTW may have in their possession) or if a comprehensive inspection is required (e.g., monthly inspections of amalgam separators, use of compliant line cleaner). Most POTW ERPs have standards to ensure return to compliance in less than 90 days for paperwork submittals so this standard may require POTWs to modify their ERPs to comply with this standard. The 7

8 proposed rule relies on paperwork submittals to ensure compliance with standards, and in turn, returns to compliance should be allowed through paperwork submittals. CASA RECOMMENDATION: CASA recommends USEPA modify the proposed rule to specify that a DIU in non-compliance for failure to submit required documentation returns to compliance when the required paperwork is received. Similarly, USEPA should remove the requirement that POTWs conduct a site inspection to verify a DIU has returned to compliance with the standards to submit paperwork. 5. The Proposed Rule Establishes Timelines for Specific Actions That May Be Unnecessary or Are Beyond the Scope of the Proposed Rule ISSUE: The proposed rule establishes deadlines that may not be needed or go beyond the scope of the rule. For example: (1) the standard to replace existing amalgam separators within ten years of the effective date of the final rule does not appear related to the functional life of the amalgam separator; (2) the standard to conduct maintenance on separators at least annually does not take into account a situation where the loading by the dental practice is very low (e.g. DIU only places composite fillings, pediatric dentist); and (3) the standard to conduct line cleaning with non-chlorine bleach line cleaner weekly (which is performed for health and safety reasons, not for environmental protection objectives). remove the above referenced timelines, deadlines, and related requirements that are not applicable to implementation of the proposed rule. Finally, many CASA member agencies provided data to National Association of Clean Water Agencies (NACWA) in support of their analysis of the implementation costs and mercury reduction estimates associated with the proposed rule that EPA identified in the Federal Register publication. CASA supports the conclusions and recommendations NACWA presents in its comment letter, and incorporates those comments by reference herein. Thank you for the opportunity to provide input on the proposed rule. If you have any questions or require additional information, please contact Adam Link at (916) or alink@casaweb.org. Sincerely, Adam D. Link Director of Government Affairs California Association of Sanitation Agencies 8