February 18th, 2011
Andrea Matzke
Oregon DEQ
Water Quality Division
811 SW 6th Avenue
Portland, OR 97204
Re: Surfrider Comments on Proposed Revisions to Oregon Water Quality Standards, Human Health Criteria for Toxics and Implementation Policies
Dear Ms. Matzke:
The Surfrider Foundation submits these comments on DEQ's proposed rule making to revise the water quality standards regulation to address the human health criteria for toxic pollutants and their implementation. The Surfrider Foundation is an environmental organization dedicated to the protection and enjoyment of the world’s oceans, waves and beaches, for all people, through conservation, activism, research and education. The Oregon Chapters of Surfrider Foundation maintain approximately 600 members including surfers, divers, fishermen, swimmers, paddlers and other user groups who spend significant time on the coast and in the ocean.
Surfrider supports DEQ's revised human health criteria for toxics based on a fish consumption rate of 175 grams per day and urges its immediate adoption. Based on extensive research, this criteria accurately reflects how much fish Oregonians, and particularly tribal members, consume, and will adequately protect people from any adverse health effects from consuming fish and water from Oregon waters. Surfrider also commends DEQ for clarifying in the proposed regulations that nonpoint sources of pollution from forestry and agricultural operations need to meet water quality standards. However, Surfrider objects to DEQ's failure to apply the revised toxics criteria to stormwater discharge permits, as well as the proposed revisions pertaining to variances and establishing a background pollution allowance, which will effectively provide a loophole for polluters and prevent any actual improvement in water quality.
The Toxics Criteria Should Apply to Stormwater Pollution Discharge Permits.
Surfrider urges DEQ to apply the revised toxic limits when it issues stormwater pollution discharge permits to municipal and industrial dischargers. Stormwater is laden with toxic pollutants; the goals of the Clean Water Act (CWA) cannot be achieved without strict compliance with water quality standards.
The Use of Variances Will Undermine Water Quality Standards.
The proposed revisions that will allow DEQ to grant variances, or exemptions, from water quality standards will prevent the attainment of the standards and are at odds with the objectives of the CWA. Granting variances from the standards protecting human health from toxics would undermine both short- and long-term water quality objectives and threaten public health. The potential for abuse is high, considering Oregon does not have a proven process in place for issuing variances. Moreover, establishing a new variance procedure will increase administrative costs and increase delays because EPA must approve each variance request.
The Proposed Variance Revisions Should Not Apply to Aquatic Life Criteria.
Surfrider objects the use of variances in implementing the revised water quality standards. However, to the extent the final regulation allows for variances, they should not apply to aquatic life criteria. The rationale behind using variances as an implementation tool is to provide flexibility to dischargers who are unable to immediately comply with the revised human health criteria for toxics. In contrast, because the aquatic life criteria are not being revised, the same rationale does not apply; there is no reason to issue variances from water quality standards that protect aquatic life. Moreover, DEQ has not specifically considered how these revisions will affect attainment of the standards protecting aquatic life. Moreover, if a threatened or endangered species may be affected, EPA’s approval of a variance from an aquatic life criterion will trigger an ESA consultation, which will only increase administrative delay.
The Duration of a Variance Should Be Limited to Three Years or Less.
Finally, Surfrider objects to the proposed revisions that would change the duration of a variance to coincide with the duration of an NPDES permit, which could exceed five years if the permit is administratively extended. Because a variance is essentially a short-term exemption from meeting water quality standards, it should be issued for as brief duration as possible. Otherwise, no incentive exists for the discharger to develop the practices or technology necessary to meet the standards, and the variance becomes a means of circumventing CWA requirements. Additionally, because Oregon has yet to issue a variance, a shorter variance duration would be prudent to ensure the smooth implementation of the program and that variances are not used to avoid meeting otherwise attainable water quality standards.
Surfrider instead suggests that DEQ maintain the existing regulatory language, which provides that a variance may not exceed three years or the term of the NPDES permit, whichever is less. This is consistent with EPA's policy that a variance must be rejustified upon expiration, but at least every three years. The triennial review of water quality standards under CWA § 303—assuming it occurs—does not require review of individual variances and, therefore, will fail to ensure that variances are still warranted, that progress is being made to attain water quality standards, and that existing uses are fully protected.
Variances Should Not Be Issued to New Facilities Under Any Circumstances.
Surfrider objects to the proposed revisions that would allow variances to be issued to new facilities if it would prevent or mitigate a public health threat, provide a net environmental benefit, or remediate water contamination pursuant to RCRA or CERCLA. A variance is designed to provide existing dischargers with certain degree of flexibility in attaining water quality standards that are difficult to meet in the short-term. Issuing variances to new dischargers would legalize water pollution and undermine the objectives of the CWA. Although the exceptions for public health, net environmental benefit, and CERCLA/RCRA remediation appear logical, they could be broadly construed to impermissibly shift the burden of pollution on water users in contravention of the CWA.
The Background Pollutants Allowance Fails to Protect Human Health and Meet CWA Requirements.
Surfrider objects to the proposed revisions establishing a “background pollutants allowance,” which would basically allow “de minimus” violations of the human health criteria so long as a pollutant already exists in the discharger's intake water, and the discharger is not adding the pollutant to the same water body. The allowance is inappropriate because it applies to dischargers whose industrial processes increase the concentration of a pollutant, which contributes to the problem, even if the discharger is not adding the pollutant.
Moreover, a background pollutants allowance fails to ensure that public health is adequately protected from toxic pollutants. This approach has only been employed as an implementation mechanism to allow de minimus increases in temperature or turbidity above ambient levels that already exceed aquatic life criteria, not human health criteria for toxics. Unlike temperature and turbidity, toxic pollutants generally are not part of the natural environment and do not have a high degree of variability. The human health criteria for toxics are derived from calculations that take into account exposure and risk to human health; allowing any increase above this criteria would threaten public health and fail to protect swimming and fishing uses. Moreover, the allowance would be difficult, if not impossible, to monitor and enforce, furthering increasing threats to human health from toxic pollutants. While DEQ's desire to encourage facilities to employ multiple cooling cycles is laudable, the proposed background pollutants allowance is not the appropriate means to do so and presents an unacceptable risk to human health.
Conclusion
In sum, Surfrider commends DEQ for developing new, more protective water quality standards for toxic pollutants that have the potential to safeguard public health. However, these standards are meaningless if they are not uniformly applied to all sources of toxic pollution and cannot be adequately enforced. DEQ should therefore apply the revised toxics limits to stormwater discharge permits from municipal and industrial sources of toxic pollution, and eliminate the ability of dischargers to obtain variances and allowances for background pollutants, which will undermine the efficacy of the new standards and fail to improve water quality and protect public health.
Sincerely,
Gus Gates
Oregon Policy Manager- Surfrider Foundation
541-999-0272