April 22, 2009 Meeting
DRAFT FINAL Facilitator’s Summary
The following notes are a summary of issues discussed and issues that may need further discussion at upcoming meetings.
Present for all or part of the meeting:
Workgroup Members: Nina Bell (NW Environmental Associates), Michael Campbell (Industrial Dischargers), Rich Garber (Association of Oregon Industries), Lauren Goldberg (Columbia Riverkeepers), Charles Logue (ACWA), Mark Riskedahl (on phone, NEDC), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR), Kathryn Van Natta (Northwest Pulp and Paper)
Other Representatives: Marganne Allen (ODF), Kathleen Feehan (on phone, CTUIR), Jannine Jennings (EPA), Annette Liebe (DEQ), Melinda McCoy (EPA), Neil Mullane (DEQ), Deb Sturdevant (DEQ), Jennifer Wigal (DEQ), Dave Wilkenson (ODA)
Also Present: Donna Silverberg and Erin Halton, DS Consulting Facilitation Team.
Facilitator Donna Silverberg welcomed everyone to the meeting and conducted a round of introductions. After a brief review of the agenda, the meeting started with an arsenic discussion.
Arsenic Criteria Revision
Debra Sturdevant, DEQ, referred the group to DEQ’s arsenic paper and said that DEQ hoped to spark good discussion of the options they put forth since the last meeting. She did a brief review of the issues presented by arsenic’s natural occurrence in Oregon’s waters. After last meeting’s pro/con discussion of the issue, DEQ is trying to strike a balance point to make sure that the criteria they adopt are appropriate for human health and allow for the naturally occurring sources in most streams to be within the criteria. To do this, she clarified that one of the options DEQ is exploring is the use of a different bio-concentration factor (BCF) than used in EPA’s calculations for arsenic, as well as application of a % inorganic variable in order to calculate criteria more appropriate for Oregon.
Using the above approach, DEQ arrived at a value of 2.7 ug/l for the organism only criterion. DEQ proposed for discussion amongst the group, using 2.7 ug/l for both the organism only and the water + organism criteria. This value is between the EPA’s national criteria under the Clean Water Act (CWA) and the Safe Drinking Water Act maximum contaminant level of 10 ug/l, which is also intended to protect human health. DEQ said because arsenic is naturally occurring, many waters in Oregon are naturally at higher levels than the EPA’s CWA national criteria, which can make implementation difficult and costly.
Jennifer Wigal, DEQ, noted that much of the data available in Oregon on arsenic is in terms of total levels, not inorganic which is the basis for EPA’s national criteria. It is likely that DEQ will still need to deal with site specific situations.
The following questions and comments were put forth by the group:
• Question: given our discussion of erosion, runoff and arsenic in soils, would like to know more about arsenic movement through the soil erosion process. How do humans contribute to mobilization of natural sources of arsenic?
Answer: in terms of loading, high groundwater concentrations in base flow is a likely issue, but think it is area-specific. DEQ acknowledged that they do not have the information at this time. A review of natural runoff and human land activity-caused runoff data would be needed to answer this question.
o Action: Sturdevant offered to share a link to the USGS study referenced by DEQ in their paper if someone would like to look at it.
• Comment: The criteria need to stand on their own. We shouldn’t use the naturally-occurring problem as the justification for the new criteria. Is there something else in the SDWA derivation of the MCL that would tell us more about the health effects level (since the 10 ug/L also incorporates feasibility considerations) (e.g., something less than 10 ug/L)?
Answer: The health effects-based number used in developing the MCL is probably much closer to that used in the CWA national criteria recommendation than it is to 10.
• Comment: suggest DEQ may want to think in terms of what the acceptable risk level would be since they also meet drinking water objectives.
o Sturdevant clarified that 2.7 is reflective of 10 to the -6 for the organism only value. She added that for the water + organism criterion, a risk of 10 to the -4 would equate to a level of 2.3. The risk level for arsenic could be set higher than for other contaminants. This risk level is within what EPA states in their human health methodology as acceptable human health risk for higher consumption levels.
• Question: what are the costs associated with measuring the split in total and inorganic arsenic fractions.
o Action: DEQ offered to get back to the group on this and Rich Garber said he would check with this lab as well.
• Question: is there more that can be said about how a level of 2.7 affects implementation and risk to human health?
o Action: Sturdevant and Melinda McCoy, EPA, offered to clarify this more offline and at the next meeting.
• Comment: would agree that a little more risk information would help members of this group weigh in on the proposed level of 2.7; however, 2.7 does seem to be defensible.
• Comment: don’t agree with the MCL starting point of 10 (and would suggest a more protective level), but do agree that a good policy-level approach would be to use the “lens” that setting criteria for arsenic is more challenging because it is naturally occurring. Would also suggest that a “margin of safety” such as that used to set the Fish Consumption Rate (FCR) be applied to the MCL.
o Action: EPA offered to get back to the group with a table that shows more of the range of protection levels.
• Question: what other states have adopted an MCL of 10 or higher? Answer: about half of US states, some of which also have background levels.
After a brief break, the group reconvened and members were asked to show their level of support for the proposal of 2.7 for organism-only via a straw poll ranging from 1-5 (1 being very supportive 5 being very unsupportive). Members of the Rulemaking Group showed many ones and twos, and two members who showed a 2.5; members commented that the 2.7 level is reasonable and transparent.
Action: Kathleen Feehan, CTUIR, said she would need to confer with their toxicologist and will provide feedback to DEQ and the group on this.
The group was also asked to weigh in on 2.7 as the proposed level for the organism + water as well; alternatively, group members could suggest additional information that could help them weigh in on the proposal. Wigal clarified that the re-calculation method equated to a level of 2.3, which was presented by DEQ as the second option; 2.7 is the “hybrid” number.
• Comment: the methodology behind 2.3 makes more sense and is more representative of statewide criteria.
• Comment: there is still the question of how to account for naturally occurring levels; suggest DEQ may want to present a couple of recommendations along with explanations of why the number is protective.
o More group discussion is needed to help flesh out human impacts / contributors versus naturally occurring levels.
• Comment: NWPPA is comfortable with 2.3 (10 to the -4) because of the methodology. Would caution the group that this level will cause problems for the smaller facilities, and we know from the SAIC report that the level needs to be realistic in order for the process to work on the ground.
Action/Next Steps: DEQ asked the group to weigh in on the organism + water option after they have the chance to review more information; group members are invited to make specific information requests by contacting DEQ staff before the next meeting.
Background Pollutants Discussion
Annette Liebe, DEQ, and Michael Campbell referred the group to a DEQ document and two documents prepared by the implementation subgroup on background pollutants. DEQ walked through its document, describing what DEQ sees as the problem statement, desired outcomes, and principles for solutions and noted that if general agreement can be reached with the problem statement, then forward movement could be made in working towards an appropriate solution to the problem.
Campbell walked the group through his memos, noting that he included examples beyond just the intake water scenario, but where pollutant loading is still outside of a source’s control. Deb Sturdevant acknowledged that DEQ’s document describes the background pollutant problem more narrowly. Campbell also said that he included not only chemicals with some naturally occurring sources but also legacy pollutants, as they need solutions too.
Campbell described that the principle issue centers on whether there is some percentage increase in concentration that is acceptable, or alternatively, whether any calculable increase in concentration above zero is unacceptable. He noted that in terms of antidegradation, EPA has used 10% as a threshold for determining whether degradation is occurring.
Liebe noted that it had been helpful to hear feedback from both the permitting group and this rulemaking group leading up to this meeting and asked the group to offer their additional comments/questions:
• Suggestion: There was a suggestion to expand DEQ’s 2nd “principle for solutions” to include resource implications for DEQ/EPA/EQC.
• Question: why aren’t intake credits a solution? Answer: intake credits may provide a solution in a simple “pass through” situation where a facility is neither increasing the concentration nor load of the intake pollutant. However, for those instances where there is no mass increase but a facility increases the intake pollutant concentration (e.g., multiple pass through cooling water scenario), a facility could not utilize an intake credit.
• Comment: resources and efforts associated with measuring an anti-degradation standard also should be considered.
• Comment: the language around compliance is deliberately specific and also needs to be specific in the standards.
• Comment: Jannine Jennings, EPA: If such a provision were adopted as a water quality standard, a demonstration showing designated uses are protected would be required. This may be possible, even given the permitting constraints. The more narrowly defined the language, the easier it will be to work with and the more likely it will be to gain regional EPA support.
• Comment: suggest clarifying in Michael’s memos the “where” of issues for 1a-1e.
• Comment: suggest clarifying language about what is meant by “ambient” and “conservation methods” should be added.
• Question: would a mass-based approach work? Answer: Campbell: for some facilities, yes – but it would not work for those with more than one source.
Problem Statement
Several of the Rulemaking Group members said that they needed additional time and information before they could weigh in on DEQ’s problem statement as it now stands.
The following next steps were identified during the meeting:
Action/Next Steps: Michael Campbell and DEQ will take the above suggestions into consideration and will work closely with rulemaking group members to prepare the next round of draft documents. Members were invited to submit additional suggestions to Deb Sturdevant, DEQ. Campbell suggested that team members focus on the specific intake water scenario for the next meeting as a starting point in identifying whether or not there’s general agreement amongst the workgroup members that this scenario presents a problem requiring a solution. The focus of the next discussion should be on whether or not the concept works for group members. If it does not, what suggestions do you have for effectively handling this issue?
The next meeting will be in May, a date to be determined via email. The meeting will be from 10-3 pm to allow more time to work through the issues and reach resolution wherever possible.