Rulemaking Workgroup: Permitting Issues Meeting #15Rulemaking Workgroup: Permitting Issues Meeting #15
June 30, 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), Myron Burr (AOI), Jannine Jennings (EPA), David Kliewer (ACWA), Peter Ruffier (Clean Water Services), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA),
Other Representatives: Bill Blosser (EQC), Ellen Hammond (ODA, on the phone), 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):
Background Pollutant Allowance:
• Concern about cumulative effects of multiple 1% increases on smaller streams/tributaries
• Re: Municipalities characterization – not all get from multiple sources. Use mass load analysis.
• Stakeholders would like to see actual numbers run for industry.
o DEQ will calculate for Willamette and one or two others where data is available (e.g. the Columbia)
• Tribe expressed support for latest modifications to DEQ proposal
• EPA approval is more likely if worded as WQS provision instead of permitting language
• Clarification of language on page 19-20 needed to allow readers to follow DEQ logic.
Delayed Implementation:
• 10-5 vs 10-6 as acceptable risk for short period—is this a possible route?
• Such an approach likely would require EPA to approve each set of criteria. Would need a clear blunt assessment/statement by EQC about its decision to reduce acceptable risk for short time.
o Which criteria would actually be impaired by delay? Practical effect?
• Implementation issues are not just about pressure on permits, but also on the quality once implemented
• Not “delayed”, but “stepwise”, “staggered” or “phased” – would be a more pragmatic approach for permit holders
• DEQ will look into concerns about immediate impacts to current permit holders.
Welcome, Introductions & Review Goals (Donna Silverberg)
Donna welcomed the group, conducted a round of introductions, and reviewed the goals and agenda for the day.
Updates and Announcements:
• Neil began the meeting by noting that the work group and his staff have made very good progress on the rules so far. He observed there is just a little more to do in this final phase of the effort. He said that DEQ’s intent is to stay on the rulemaking schedule laid out in May, especially considering EPA’s disapproval decision last month. He said he and Director Pederson will continue giving Director’s Dialogue updates to the EQC.
• Jennifer said that the toxics effort was mentioned in the Director’s Dialogue at the last EQC meeting in Lakeview. Jennifer also reported about the arsenic standards at that meeting. At the August 18-19 EQC meeting in Portland, DEQ will give a full Info Item report on the rulemaking. She said that DEQ will proceed with the arsenic rulemaking at an accelerated rate. DEQ will get information to the Secretary of State in mid-August and the announcement will be published in the bulletin on September 1. The public comment period will be in September with EQC adoption in December 2010.
• Janine reported that on June 1, EPA took CWA action on the human health criteria that Oregon adopted in 2004. For the most part, the criteria were disapproved (everything that was based on a fish consumption rate of 17.5 g/day). The implications of this decision are that Oregon has 90 days to respond to the disapproval. If the state does not respond and make corrections, then EPA will move forward with promulgation and take control. If DEQ wants to keep this in their control, Janine said that they need to move forward with this rulemaking as planned. She noted that EPA wants this process to stay in Oregon’s control. Janine said that once DEQ submits their new rules to EPA for approval, the turnaround time will most likely be a few months.
Background Pollutant Allowance (Debra Sturdevant)
Debra gave a recap of the previous meeting’s decisions and the de minimus process to-date. She noted that DEQ had received comments on their issue paper and made changes where they saw they were needed. Once input is received in today’s meeting, DEQ will make a final round of revisions and then finalize the issue. (See the ‘Background Pollutant Allowance Section’ of the draft issue paper distributed prior to this meeting and the power point presentation given at the meeting).
Comments/questions from the RWG and others
• Question: Are there other uncertainties than what were mentioned on the slides?
o Answer: It is difficult to envision all of the circumstances and the various outcomes so, while DEQ has tried to think of as many as possible, additional uncertainties are possible.
• Comment: “Assuming instantaneous complete mixing” has been deleted out of the proposal in two places. The issue paper did not explain how the mixing is assumed.
o Response: The revised wording is based on a mass balance calculation on receiving water and effluent.
• Comment: There is concern about the different scenarios and how this works in large water bodies vs. small water bodies. If every discharger is getting 1% above intake, then, as flow goes downstream, the concentrations would be getting incrementally larger. There needs to be language in the rule that would prevent this provision from being abused in the future.
o Response: The streams where this provision would apply are streams where they are exceeding the criteria. This provision is trying to get at facilities on the stream that are using the water, but aren’t contributing to the load, or whose impact is so small that it wouldn’t be really affecting the human health criteria.
• Comment: The cumulative impacts of discharges would not add up too quickly because it would be 1% of 1% of 1%, etc. The provision assumes municipalities get water from various sources.
Disagree with this logic. The issue is the contact of the water that is passed through the users to the discharge point. DEQ could still do a mass load calculation from intake to discharge point.
• Comment: This provision will make or break the rule package for industrial dischargers and the numbers are what really matter. DEQ’s latest version goes too far to be workable for industrial dischargers. Has DEQ done any actual analysis on mixing and concentrations to come up with their proposed numbers?
o Response: DEQ has run the numbers on hypothetical situations. DEQ will run the numbers on actual dischargers on the Willamette and Columbia, if staff receive data needed from facilities, and present the results. However, facilities might not have the actual data on the discharges.
▪ Comment: This response shows that we are writing these rules without enough data. Industrial dischargers need the 3% or larger number and view it as a minimum, not a maximum. The rule needs to be flexible so that it is workable.
▪ Clarification: DEQ’s revised perspective includes using the 3% number.
• Comment: The Tribe is on board with this and thinks that it is in line with what EQC wants in terms of innovative strategies.
• Comment: These provisions have a limited benefit for municipal dischargers because of the disconnect between intake and discharge.
• Question: If a discharger was taking in water that was below the standard, then could they add both concentration and mass?
o Answer: Yes, this would be a normal permitting situation.
• Comment from EPA: The key is to write this provision as a WQ standard and this is not easy to do. As it is currently written, this is a permitting provision and EPA does not typically approve permitting provisions. EPA cant’ guarantee that we will approve this as a standard. If this ends up being a permitting provision, then this will be a management decision that requires a lot of legal input. If this is worded as WQ standard, then DEQ has to show that it is still protective of the beneficial uses. EPA can’t provide the certainty that everyone wants at this point whether this will be a standard or a permit tool.
o Question from DEQ: When will EPA communicate their issues with approvability – during the public notice or after it is submitted for approval action?
▪ Response from EPA:
• Question: On the charts on page 19-20, can DEQ explain the choice of “% change in waterbody” in writing and send it to the group? What is the risk?
o Answer: This is a situation where the ambient criteria is above the criteria. This would be looked from an incremental risk point of view. DEQ will provide a better explanation of the numbers in the issue paper. DEQ can do illustrative calculations – and on the risk side the calculations will be more site specific. DEQ has to say that the mass stays the same. The rationale gets more difficult once we start adding multiple sources.
• Comment: What about the source of water for dischargers using multiple intake water sources (including groundwater)? Should DEQ consider sources other than surface waters upstream?
o Response from CTUIR: The Tribe is OK with this approach – the criteria needs to be limited below the ambient level in the receiving water and in the groundwater.
• Comment: It will be difficult to make the calculations when you are considering a percent of groundwater going into municipal systems. It will be difficult to identify components as a percentage of total discharge. Need to acknowledge groundwater in municipal systems, and using a number like 1-3% is useful.
• Comment: Uncomfortable with a provision that would increase the mass loads on things that would affect WQS. Concerned with the provision about not being able to detect the pollutant in the water and how this works with the quantitation limits and what it really means.
• Comment: We do not need restrictions on source water as long as the discharge has no mass increase (based on mass in the input stream). The intake stream is a benchmark.
• Comment from EPA: Regarding the legacy pollutant issue - the Columbia River Restoration Bill is in Congress currently and Senators are introducing a redraft that is entirely focused on toxics and sets up a grant program. This likely will help us address some of our larger concerns regarding toxics.
Delayed Implementation (Andrea Matzke)
See the Delayed Implementation section of the draft issue paper that was distributed prior to this meeting.
DEQ is limited on options available to them on delayed implementation, especially in light of EPA’s disapproval in June. As such, DEQ is suggesting that the criteria become effective upon EPA approval because this approach is legally defensible and would provide one effective criteria table. Permitees would have extended time to comply via the tools, not the standard itself.
Comments/questions from the RWG and others:
• Comment from EPA: EPA needs replacement criteria within 90 days. If EPA is left with criteria that are not protective of uses, then there would be a problem. The most CWA-defensible position is to say that the criteria would become effective at the time of EPA approval.
• Question: Given EPA’s position that 17.5g/day is not protective, what is EPA doing regarding other states with criteria that are less than that?
o Answer: EPA is addressing this similarly in all the Region 10 states.
• Question: Is DEQ’s decision about the appropriate FCR based on politics or science?
o Answer: Changing the FCR will not really affect the significant issues that are facing the dischargers. As far as risk level, this is applicable only to percentages.
• Comment: What about changing the acceptable risk level for a period of time instead to allow permit holder time to comply while still being approvable by EPA?
o Response: This idea has been around since the 80s and is always contested. Every time the EQC is asked this, it has come back with 10-6. EQC would want to see arguments on both sides, but they probably won’t change it. EQC has stuck with10-6 for risk level in various programs across the agency for many years.
• Comment: This is not delayed implementation, but rather a pragmatic step-wise approach. This should be built into the standard at the front end.
• Comment: Something about two sets of criteria for the same pollutant. Sorry, I didn’t catch this either, but from Jannine’s response, someone probably asked about having 2 sets of criteria based on different risk levels (i.e. 10-5 vs 10-6 )—one being less stringent to give dischargers additional time to comply with the higher criteria.
o EPA’s Response: Jannine said she has never dealt with this. This would lead to EPA taking action on both sets of criteria and specifically approving/disapproving the criteria in each one. If DEQ and people want to do this, they should first look at the criteria that would be affected by phased implementation, including for how many it would make a difference relative to the QLs. Are those that are affected actually chemicals of concern for the facilities?
• Comment: The FIIAC committee thought that higher standards would be easier to implement if there was a stepwise and timed approach. See pages 7-9 on the draft permits paper that shows various pollutants of concern. If we say in the rules that if they are effective upon EPA approval, this introduces a lot of regulatory uncertainty for current permit holders. All the ways industry had figured out to attain compliance will change.
o Response: There is a permit shield if someone has a permit and then the standard changes and they are in noncompliance.
▪ Comment: This isn’t true if DEQ is requiring facilities to collect data.
• Response: DEQ will look at this issue, although the permits have had this same language in them during various previous standards changes.
• Comment from CTUIR: The Tribe believes that delayed effectiveness should not be implemented across the board. There will be industries that need more time and there should be a provision that deals with them. This could be addressed in a compliance schedule with a stepwise approach and benchmarks. The Tribe can’t support using different FCRs that don’t adequately protect people or that have different risk levels.
Next Steps (Donna Silverberg)
July 15th Meeting Agenda:
• Impacts to current permit holders update
• Variances
o Pollution prevention plan (ACWA proposal)
• Compliance schedule for human health criteria update
2010-07-09T10:59:00
[SB1]
Stephanie Brandon
Please insert EPA’s response ,I missed it.
2010-07-09T10:59:00
[SB2]
Stephanie Brandon
Please clarify, I missed this.