Rulemaking Workgroup: Permitting Issues Meeting #14Rulemaking Workgroup: Permitting Issues Meeting #14
May 20, 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), Lauren Goldberg (Columbia Riverkeeper), Jannine Jennings (EPA), David Kliewer (ACWA), Peter Ruffier (League of Oregon Cities), Mary Lou Soscia (EPA), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA),
Other Representatives: Bill Blosser (EQC, on the phone), Spencer Bohaboy (DEQ), Annette Liebe (DEQ), Andrea Matzke (DEQ), Neil Mullane (DEQ), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ) ), Ken Williamson (EQC)
Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)
Action Items Resulting from this Meeting (summary notes to follow):
1. DEQ decide on items to include in the variance decision memo and include GLI
2. RWG get back to DEQ with any other comments on variances to address in the July meeting
3. RWG send corrections on the variance issue paper to DEQ
4. DEQ replace ‘variance’ with pollution prevention in the rule as possible solution.
5. Discuss how the RPA process works for ‘occasional hits’ (DEQ & EPA)
6. DEQ send the Interim Arsenic IMD to the workgroup.
Welcome, Introductions & Review Goals (Donna Silverberg)
Donna welcomed the group, conducted a round of introductions, and reviewed the goals and agenda for the day.
Goals:
• Review DEQ’s recommendations related to variances
• Identify path to wrap up discussion on variances in June
• Determine whether or not DEQ can pursue the pollution prevention proposal
Announcement: Peter will be changing jobs to CWS in Washington County at the beginning of June. He will work with LOC for a replacement.
The meeting began with an objection from one member about the planned agenda and approach of DEQ laying out its proposal prior to the group’s discussion because this approach felt more like DEQ was telling the group rather than engaging the group in discussion. Other members expressed the view that hearing DEQ’s thinking prior to discussion would be useful. As such, the meeting proceeded as planned.
Variances (Andrea Matzke)
Andrea discussed the variance section of the issue paper and the variance decision memo. She noted that DEQ was trying to reflect in the memo the bulk of concerns it had heard in meetings and in writing.
Comments/Questions from RWG members and others:
• Comment: One workgroup member was not happy with the process for how the issue paper was put together. There are point source concerns about the variance process that are not addressed in the paper and it seems like DEQ has closed the door on certain discussions about variances.
o Response: DEQ wants the point source issues to be brought up because the paper should contain all of the issues. Our discussion today is to bring up issues that may be absent from the paper so DEQ can possibly add them.
Aquatic Life Eligibility:
• Comment: DEQ has focused on GLI issues that are expedient, but has ignored more difficult issues. Workgroup member will write a minority report expressing her opinion on this topic. She felt she had mentioned a lot of issues in discussion that DEQ has not adequately captured.
• Comment: When should work group members submit written comments on the issue paper? Don’t feel we have discussed the policy ramifications of policy decisions we are making regarding variances. We have not discussed what it means to implement longer-term variances relating to other parameters liker temperature, DO, etc. DEQ is pushing the boundaries of variances.
o Response: In the rule, we will be looking at really small numbers and give people a long time to address the issues. If this applies to both Human Health and Aquatic Health criteria, then the rules need to reflect that there is a difference between how the HH and AH are looked at. For Aquatic Criteria, each pollutant would be looked at separately. For the EQC to consider a variance for aquatic life there needs to be an explanation. DEQ will eventually reflect the decision memo in the issue paper.
• Question from DEQ: Is the concern around conventional aquatic life criteria or aquatic life criteria related to toxics? Conventional parameters are not related to human health.
o Answer from RWG: The concern is broad and includes conventional and toxics criteria.
Variance Duration:
• Comment: The implication in the document is that the variance will continue as long as a permit is extended. Can DEQ remove the variance if a permit is extended?
o Answer: DEQ can initiate a permit modification at any time. When the permit is in extension, DEQ cannot modify it. In that case, if DEQ wanted to modify it, then they would need to reissue the permit. When the permit is reissued/renewed then the permitee would need to go through the variance process again.
• Comment from DEQ: DEQ will put language in the issue paper that states that a permit carrying a variance will be put to the top of the permit renewal list in the year after it expires. This will reduce the extension time and address the time concern.
o Response from RWG: This is a good idea, but the reality is that permit renewals take a long time and the extension process can continue for a number of years.
▪ Response from DEQ: DEQ does not have control over the public process for permit renewals, but they can make reissuing permits with a variance a priority.
▪ DEQ will clarify the duration issues in its memo.
Existing Use Protection:
DEQ will grant variances only if doing so will not result in the loss of an existing use. DEQ would not issue a variance unless the variance maintains or improves WQ. DEQ wants to be protective of existing uses. DEQ will fully develop the definitions of “existing use” and “designated use” in the rule. If a variance is granted for a pollutant, then part of the pollution prevention plan would include different measures that would stop further degradation. This will be clarified in the language.
• Question: Can trading be used to get a variance?
o Answer: Yes.
• Comment: DEQ needs to note in the rule that trading in the watershed would be permitted to avoid further degradation.
o Response from EPA: Trading would be included in the variance as a part of the pollution reduction plan. Trading cannot allow a permitee to increase pollutant loads.
• Comment: The RWG needs to understand DEQ’s standard of review for a loss of existing use. The RWG needs clarification on the “applicability and scope” paragraph on page 3.
o Response: This relates to human causes. DEQ will clarify this in the issue paper..
Applicability of Non Point Source Best Management Practices:
DEQ is recommending that dischargers must implement cost effective and reasonable BMPs for those non-point sources over which dischargers have control.
• Comment: EPA’s response on page 8 on the memo says that BMPs should be implemented instead of asking for a variance. For point sources, control means ownership, not a contractual arrangement like trading would require. Contractual arrangements are not how point sources maintain compliance with their NPDES permits. This would force them into an untenable situation in certain circumstances. There are too many legal issues with this and it should not be in the rule as a requirement.
o Response: These are two separate scenarios. One is about when variance is already in place and pollution prevention plan options are being considered (i.e., using trading). This was not captured in the memo and it needs to be addressed when we revise the issue paper.
• Comment: DEQ’s logic around reliance was questioned. As noted in prior meetings, the reliance on this does not make sense since OR is so different from the Great Lakes situation.
o EPA will look at language in the issue paper regarding GLI and noted that states often will rely on a number of other sources as justification for new ideas and approaches regardless of whether it is an exact duplication of the situation elsewhere.
Variances for New Facilities:
• Comment: RWG member strongly objects to the language in (ii) about providing a ‘net environmental benefit’. This language is open to too much interpretation and possible abuse. Another RWG member likes the ability to evaluate the net environmental benefit, but having this as criteria to grant a variance is inappropriate. This could be included in a pollution prevention plan.
• Response: These conditions allow facilities to apply for a variance, but they would still need to meet the six justifications.
• Question: How does DEQ define “new facility”? Does that mean a new permit or a new facility? New facilities are built that are covered by existing permits.
o Answer: DEQ means a new discharger.
• Question: Would expansion due to growth of an urban area be considered a new source?
o Answer: No.
• Comment: RWG member agrees with what has been said regarding new facilities. This would give companies building new facilities in Oregon long pause to reconsider their decision. Is this the only avenue for remediation under CERCLA? Is a remediation facility required to go through variance permits if they can’t meet standards?
o Answer: Yes.
• Question: Why did DEQ decide to drop the language on MDVs?
o Answer: Very few facilities would fall under MDV and DEQ is not going to pursue it in the rulemaking at this time. DEQ may pursue it in the future.
▪ Comment: RWG member objected to language in the rule (and the idea) that says DEQ can develop a future rule about MDVs.
NPDES Compliance through Pollution Prevention Proposal (Dave Kliewer and Peter Ruffier)
Dave and Peter discussed the information contained in the handout: “NPDES Compliance through Pollution Prevention.” They noted that they see this as part of a permit evaluation and determination of “conditions and actions” for compliance.
Comments/Questions from RWG members and others:
• Question: Is this on the matrix?
o Answer: This is a few things combined, but is not a separate item on the matrix. RPA is an essential element of it.
▪ Request: This should be added to the matrix as a decision point.
▪ REQUEST: Status check on the items on the implementation tools matrix at the next meeting
• Question: Will this be addressed under the umbrella of a variance or if it will be a separate process?
o Answer: It is not under the variance, it will be part of a permit evaluation. RPA describes how you will address compliance. This describes what appropriate permit conditions would be. DEQ needs a reality check from the regulatory community whether this can actually work. This process builds off of RPA.
• Question: The rule is for adoption of numeric criteria. Does this approach undermine the numeric criteria?
o Answer: If we have the criteria, DEQ can do a RPA, come up with a number, put it into a certain tier, and then decide what happens depending on what tier it falls into.
• Question: In this situation, would the standard be attained by a combination of numbers attained by technology-based plus quantified reduction from other pollution prevention requirements? Would monitoring of effluent show that you were in attainment of the standard after pollution prevention?
o Answer: Yes, that would be the case. If there was still an exceedance, then it would need to be offset by trading or something else.
• Comment: This says that in tier 1 and 2, the facility is not necessarily out of compliance, but will do certain things to mitigate pollution. If they are in tier 3, then they are definitely out of compliance and will have to take action to reduce pollution.
o Response: Tier 1 and 2 are listed because they have occasional hits and this may be due to legacy pollutants.
• Comment: There needs to be a distinction between hovering around the criteria or hovering around the quantitation limit (QL). The uncertainty around the QL and uncertainty around the criteria are two separate issues.
• Question: How do we do this given what is laid out in EPA’s technical support document regarding writing permits? How could we make tiers 1 & 2 work and make it legal? Once RPA has been determined, we don’t see the option of not establishing a WQ based effluent limit, so we are back to narrative criterion.
o Answer: This depends on how you define and interpret RPA and the technical support document. It is guidance only, not the rule.
• Comment: The EPA Permits Group would say “No” to this right now because it doesn’t meet the framework of what is happening today. EPA does not have a high degree of hope to figure out how this can be worked into a permit based on current practices. In order to get a substantive ok on this will require working to get an answer on the statistical vs. narrative aspects and how to put these into a permit.
• Comment: The chance of this moving forward to work in the permit “as-is” is slim. But there are good ideas in here that can be researched more. There may be a hybrid way to work these concepts into the process.
• Comment: This could be combined with the work coming out of SB737. We don’t have the time in this rulemaking to make this work. Elements of this can be worked into a variance or a permit compliance tool.
• Comment: This is similar to what we are doing with stormwater permits. Pollution control plans won’t work without narrative criteria.
• Comment: Caution against speculation about SB 737 plans as a vehicle for anything. This feels like a Maximum Extent Practicable (MEP) situation. Workgroup member can’t endorse something that would hold point sources to less than what the law requires. Would this apply to munis or industrial sources?
o Answer: We didn’t discuss both, but assumed this is more from a muni perspective.
• Comment: Industrial sources should be included if this moves forward.
DEQ needs to look into the RPA process and EPA’s technical services document (TSD). We need to get clarity on the TSD and what the intent was. DEQ needs to know what their leeway is.
• Question: How is the third tier the same or different then what we have talking about regarding variances? What is it about variances you don’t like that makes this idea viable?
o Answer: A variance is not viable for municipalities because of the limited time period plus the requirement that you have to document that you are protecting an existing use in the request for the variance. Asking for a variance is difficult for munis to accept philosophically because, in requesting a variance, they are saying outright that they won’t meet WQS. We need to have a best path for action when you are in the ambiguous position where you don’t know if you are in compliance or not. The actions you’d take in this plan for tier 3 are basically the same as a variance.
▪ Comment: We need to ID something in the variance process that won’t work for Tier 3.
▪ Comment: Variances, by name, put munis in a bad position with the public when they are actually working really hard to protect clean water.
• Comment: If this proposal comes back to the RWG, please make specific references to the RPA, item D and the technical services process (TSP).
• Question: Variances are required to have DEQ and EPA approval, but this process would just have DEQ approval. Is the additional approval a concern?
o Answer: No. A variance is focused on a waterbody and designated uses. This process is focused on a permitee and how a permit can be implemented. The other difference is that a variance assumes noncompliance. This process defines compliance, and if you met the conditions of the permit you’d be in compliance.
• Request: Please remove the word “variance” and change it to “pollution prevention plan”.
ACTION: DEQ will do a search and replace of variance with pollution prevention and see if this may work as a solution to the problem posed by language and its implications.
Next Steps (Donna Silverberg)
June/July Meeting Agenda
June 30
1. Background Pollutant Allowance
2. Updated implementation tools matrix with status
3. Delayed Implementation
July 15th
1. Variances
2. Pollution Prevention
3. Follow-up items from June 30th