Rulemaking Workgroup: Permitting Issues Meeting #16Rulemaking Workgroup: Permitting Issues Meeting #16
July 15, 2010, 8:30 AM- 11:30 AM
Location: EPA 5th Floor Conference Room
Portland, OR
Present for all or part of the meeting (in-person or on the phone):
Workgroup Members: Nina Bell (NWEA), Michael Campbell (Industrial Dischargers), Rich Garber (Boise Inc.), Lauren Goldberg (Columbia Riverkeeper), Peter Ruffier (Clean Water Services), Ryan Sudbury (CTUIR, on the phone), Kathryn Van Natta (NWPPA),
Other Representatives: Spencer Bohaboy (DEQ), Ellen Hammond (ODA), Annette Liebe (DEQ), Andrea Matzke (DEQ), Neil Mullane (DEQ), Mary Lou Soscia (EPA), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ)
Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)
Follow Up Items Resulting from this Meeting (Summary notes to follow):
Variances:
• Clarify that “new discharger” is a new permitee (not a new outfall) via definitions
• Section F: (1)(b)(A) – Clarify language so that effluent limits are based on new standards
• New discharger exceptions
o Dam removal language:
▪ Use a standalone rule (w/ separate conversation)
▪ 3 Basin Rule language as model?
▪ Suggested removing “such as a dam removal” (voted, mostly 1s and 2s for change)
o New discharger: Replace net environmental benefit with anti-deg language (mostly 3s and 4s in support)
• Pollutant Minimization Plan
o Clarify “reasonable progress,” if any is possible. “PMP and ANY actions…”
o Relationship to compliance schedule IMD?
o Tabled the discussion on the difference between the pollutant minimization plan with the variances and the toxic reduction plan
o DEQ will create a document based on the comments they receive
• Send out to the group with revised language.
Toxics Pollutants Reduction Plan:
• Change the language regarding the 175 g/day
Background Pollutants Rule
• Send out to group and collect comments. Based on the comments, possible follow up in August.
Welcome, Introductions & Review Goals for the Day (Donna Silverberg)
Donna welcomed the group, reviewed the agenda, went over the goals for the day, and conducted a round of introductions.
Neil reported that DEQ is working on getting the final rule package together, including the fiscals. He thanked the group for hanging in there during this difficult process. In August, the workgroup will discuss the assembly of the fiscal impact statement. In September, the workgroup will look at the final rule package. There is no need for an October meeting at this point.
Variances (Andrea Matzke)
See the variance section of the draft issue paper distributed with the agenda. Andrea presented the proposed rule changes and assessed the workgroup’s level of support.
Questions/comments from workgroup members and others:
• Question: Does “new discharger” mean new outfall? What about if you moved an outfall to improve its position in the river? DEQ needs to specify the intent.
o Answer: “New discharger” is for a discharger that does not have an existing NPDES permit for a waterbody. DEQ will review this language again to make sure it is clear.
• Comments: The rule should define “new discharger.” There is a definition of “new discharger” in the federal rules.
o Response: DEQ will take a look at that. (Note: Later in the meeting, Neil looked at the definition and said that the definition in the federal register doesn’t work for what DEQ is talking about here.)
• Comment: On the bottom of page 7, under section (1)(b)(A): In many cases we are not talking about the standard being attained we are talking about the effluent level being attained. Instead of saying “standard will be attained,” the rule should say “effluent based on WQ standards.”
• Question: (1)(b)(D)(ii) which discusses water quality/habitat restoration projects, such as dam removals: What has been done so far with dam removals?
o Comment: They have not been opposed to date. A variance does not work for dam removal and should not be in here.
▪ Response: This is not the preferred option for the Klamath, but this could be a potential option to address it. DEQ included this to keep the door open.
• Comment: If this is the only place in the rules that mentions dam removal, then it makes it seem like a variance is the way to deal with dam removal. There may be a special provision in the Three Basin Rule that we could use as a model. If we include this, we need to make it look like it isn’t the only option. We need to cross out “such as dam removal.”
Vote: DEQ will include this new language, but remove “such as dam removal”?
Result: Mostly 1s and 2s
On page 8, the old language saying “net environmental benefit” was too subjective, so DEQ added alternative language (section (1)(b)(D)(iii)). This new language mirrors the language in DEQ’s antidegradation provision in the OARs.
Questions/comments from workgroup members and others:
• Question: What is the definition of “costs” per (1)(b)(D)(iii): where benefits of the lowered water quality outweigh the environmental costs of the reduced water quality”?
o Answer: The discharger must be able to show that the lowering of water quality would provide widespread socioeconomic benefits. In addition, the socioeconomic benefits of lowering water quality must be demonstrated to outweigh the environmental costs. This cost analysis would follow EPA’s 1995 “Economic Guidance for Water Quality Standards”.
• Comment: Worried about the definition of “cost” in terms of the environment. Not sure how you would determine this in economic terms.
o Response: Environmental cost is the environmental impact, not just the cost in dollars and cents. There is state and federal guidance on how to determine environmental cost. This is mirroring a process that already exists.
Vote: DEQ will remove “net environmental benefit” and keep the new language.
Result: 3s and 4s, several abstentions
• Question: Can DEQ go through the pollutant minimization plan analysis (page 9, section (4)(d)) and determine that no reasonable progress can be made? Will any action happen?
o Answer: Reasonable progress will vary by discharger. Maintaining the status quo would be OK in limited circumstances.
▪ Comment: This language does not reflect that idea. This language says that you actually need to make progress. Reasonable progress could be redefined.
• Comment: According to the Compliance Schedule IMD, milestones would be fully enforceable permit limits. Would DEQ be using these conditions towards developing a pollutant minimization plan?
o Response: There is no direct applicability of the Compliance Schedule IMD to how DEQ would implement variances. Regardless of specific language, DEQ’s intent is that there would be a spectrum of ideas in the plans that would be developed.
• Comment: The new variance gets closer to the compliance schedule, but still includes room for uncertainty with regard to the timeframe for making improvements, if any. With a variance, the discharger is committing to take action (but the result is not necessarily WQ standards compliance); with the compliance schedule, they commit to get a result (which is WQ standards compliance).
• Comment: If the language was changed to “a proposed pollutant minimization plan and “any” actions…,” then this would clarify the intent.
• Question: What is the difference between a pollutant minimization plan with the variances and the toxics reduction plan?
o Answer: DEQ will table this discussion until later.
• Comment: The position of NWPP is that we did not feel it was appropriate to be forced into pollutant offset for trading for industrial facilities when those reduction activities did not fit into the situation at hand. This language still creates the expectation that this will fit for everyone and every situation. DEQ needs to be very explicit with terminology and expectations. Pollution offsets are not appropriate in all situations for all dischargers.
• Comment: Nina distributed a handout with suggested variance revisions that pertained to section 4: Variance Submittal Requirements. She asked the RWG to consider additional requirements for POTWs in their PMPs and a demonstration for legal authorities for sewer use ordinances to regulate the pollutant of concern. .
• Comment: On page 10, section (5)(c), add “thorough ANY such actions described in the PMP…”
• Comment: On page 10, section (5)(d), regarding the milestone extension – it is odd that DEQ is determining 5-6 years beforehand that the permitee won’t be meeting WQ standards.
o Response: If the plan is going to be extended, DEQ needs to ensure that activity is occurring during that period of time.
• Comment: On page 9, section (3)(a), change the language to “Unless renewed, the permitee must be compliance with the effluent limitation sufficient to meet the underlying WQ standard or be subject to the compliance schedule upon expiration of the variance.”
o Response: This new language is good, it clarifies the issue.
• Question: Has DEQ determined a number of years?
o Answer: DEQ could take an average of the extensions. But based on historical extensions, this may not be a good idea. DEQ does not want to make it too long.
• Comment: DEQ has not met Objective #4 on page 1. The primary questions regarding these changes are related to this objective. Will EPA be reviewing PMPs? What does timely action really mean?
o Response from EPA: EPA thinks that variances are an important tool to use and EPA has invested a lot of time and is committed to it. EPA wants a process where they work more in-step with DEQ and it doesn’t come directly to EPA.
• Comment: The variance process will be long and drawn out, especially for small municipalities where there isn’t a lot of data. The application will come in, the RPA will be done, and then they will go back and try to get a variance and may need to get more data.
• Comment: A disconnect exists in the current process and the Compliance Schedule IMD that was recently issued.
o Response: You can’t use a compliance schedule to gather more data to justify a variance.
• Comment: DEQ needs to figure out a solution to this.
• Comment: Can we do a pilot program to work out the bugs prior to making the rule? There are a lot of unknowns here until we take facilities through this process.
o Response: Tweaks will be made along the way as DEQ encounters problems and rule changes will have to be made.
• Comment: The challenge is not to have rule language that is too prescriptive
o Response: DEQ can create an IMD of what will happen during the variance process.
Vote: Group voted on Nina’s new language contained in her handout.)
Result: Two 5s on the new language. DEQ also felt that the language from Nina’s document was problematic.
Vote: Based on DEQ’s revisions, what is the level of support for the proposed rule (understanding that we heard DEQ’s intent and that an IMDs will follow)?
Result: Mostly 2s, one 3,one 4, and one 3.5
Vote: Is this a viable framework?
Result: Three 5s, two 2s and one 3
• Comment: This is not a workable framework because there is a high level of uncertainty for what it would take to get the “yes” on the justifications.
• Comment: This new revision increases the term from three years to the permit term and you would not need to go through EQC. This is better than the existing rule, but is not a solution. We need to focus on something that looks at the standard itself.
• Comment: Agreement with the prior two statements. Conditions to grant a variance still provide a barrier with a lack of guidance to industrial dischargers. DEQ has not discussed what the natural occurring pollution concentration aspect would look like. If you do the RPA, realize you have a problem and then go and collect information, there is a lot of regulatory uncertainty during that timeframe concerning what they have to collect and what they have to prove.
• Comment: We should include background pollutant scenarios in this rule. Section 2(c), human-caused conditions or sources C might address it, but it might be too broad.
Toxics Pollutants Reduction Plan ( Jennifer Wigal/Peter Ruffier)
See Toxics Pollutants Reduction Plan proposal distributed with the agenda.
• Comment from DEQ: At a previous meeting, Ken voiced an opinion that in a situation when a small municipality goes to a city council to get funding to complete the research to get a variance, there may be resistance to the word “variance”. So DEQ took out the word “variance” and replaced it with “toxics pollution reduction plan”. DEQ went through this process yesterday with Peter and David. They removed the word variance to avoid negative public perception of it. The question is, why have a whole section on variance and not just this? If this is the way people want to go in terms of perception, then maybe DEQ can go this way with the rule language.
o Response from EPA: It can be called anything as long as it meets the CWA.
• Comment: We need to be honest, and if someone needs to go to a city council, they should be able to explain what a variance is. If you use other language, it is misleading to the public. 175g/day under section (1) is misleading, too if this provision is to be applied to aquatic life criteria as well as the human health criteria. Munis want all source control to be voluntary and don’t want to be required to control sources of pollutants to their systems. To ensure pollution management plans are as effective as possible, then munis need to be bound to controlling sources of toxic inputs into their systems.
o Response: DEQ would change the language regarding the 175 g/day.
• Comment: If this is the only legally defensible ways of complying with WQS and the largest group in the state wants to call it this, then this is OK. As long as this doesn’t create a bad regulatory situation for NWPP’s position, then it is OK.
• Comment: “Variance” is a term that is critical because it is a term that speaks to the public. It is good that Oregon’s variance rule contains pollution reduction plans.
• Question: Would a mandated sewer ordinance be for those that request a variance and not across the board?
o Answer: Yes.
Updates
Annette:
Annette discussed DEQ’s decision not to pursue the compliance schedule rule related to the human health criteria at this time. DEQ will use the existing rule consistent with the terms in the IMD. Anything that would affect the rule would not affect human health criteria. EPA said that if DEQ did this, then it would be more difficult for them to approve the rules. Regarding the issue that was raised about permitees being out of compliance with the new rules if the new criteria are “effective immediately” - DEQ looked at some existing permits to see what would happen and talked to DOJ. In Schedule A of a Georgia Pacific permit, there is language about a permit shield. DEQ sent e-mails to the permit managers asking them if they knew of any permits that had the old language in the face plate and they were not aware of any. Reopeners would not be an issue here because DEQ does not have the resources to do that at this point.
Debra:
Debra gave an update on the Background Pollutant Allowance. DEQ came up with revised language based on comments received from the last discussion. This new language is being reviewed internally. Once that is done, Deb will touch base with Michael since he missed the last meeting. DEQ will then send out the proposed revision to the whole workgroup via e-mail, collect comments, and decide if it needs to go on the August agenda.
Next Steps/Wrap Up (Donna Silverberg)
August Meeting
• Possible follow up on Background Pollutants Rule
• Framework for Fiscal Analysis – DEQ will send out the outline in advance to the workgroup and then get feedback on it in August. The workgroup should identify gaps in the approach, the sources of data, and the analysis.
• DEQ will provide a compilation of revised issue papers.
2010-08-03T13:49:00
[SB1]
Stephanie Brandon
I’m not sure what section of the rule we are talking about here – can someone fill it in?
2010-08-03T13:49:00
[SB2]
Stephanie Brandon
I missed the stuff about Nina’s handout.
2010-08-03T13:49:00
[SB3]
Stephanie Brandon
I am confused about what the problem is.
2010-08-03T13:49:00
[AM4]
Andrea Matzke
Sorry, I don’t know what exactly the problem was either.
2010-08-03T13:49:00
[SB5]
Stephanie Brandon
Not sure what exact language we voted on.
2010-08-03T13:49:00
[AM6]
Andrea Matzke
I’m not clear either, but he could have been referring to this language.
2010-08-03T13:49:00
[SB7]
Stephanie Brandon
Not sure what “C” they were referring to.
2010-08-03T13:49:00
[SB8]
Stephanie Brandon
Please clarify this and the response regarding the 175.
2010-08-03T13:49:00
[SB9]
Stephanie Brandon
This not clear.