Rulemaking Workgroup: Permitting Issues Meeting #13Rulemaking Workgroup: Permitting Issues Meeting #13
April 27, 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), Michael Campbell (Industrial Dischargers), Kathleen Feehan (CTUIR), Rich Garber (Boise Inc.), Lauren Goldberg (Columbia Riverkeeper, on the phone), Jannine Jennings (EPA), David Kliewer (ACWA), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA), Dave Wilkinson (ODA)
Other Representatives: Bill Blosser (EQC), Spencer Bohaboy (DEQ), Annette Liebe (DEQ), Andrea Matzke (DEQ), Neil Mullane (DEQ), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ), )
Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)
Action Items Resulting from this Meeting (summary notes to follow):
• As, Fe, Mn Rulemaking:
1. Group comments to Michael by 4/30
2. EPA will receive on 5/3 for comments next week
3. Final discussion with subgroup 5/5
4. Proposal submitted to group and voted on via email.
5. DEQ put together final timeframe for public notice, hearings, and EQC
• Background Pollutant Concentrations
1. Finalize/refine definition of allowance
2. Further develop rationale
3. How does this work with quantitative limits now and in the future?
4. Work with EPA
5. Conceptual discussion of allowance conference call before May meeting
6. Subgroup assist with detail refinement
7. Address at June meeting
• Restoration WQ Standards:
1. Neither DEQ nor work group members have identified a specific waterbody at this time to include with this rulemaking. DEQ already has regulatory authority to implement restoration WQS and will consider this tool if a waterbody is identified in the future.
2. Address step-wise approach at June meeting to develop workable implementation of WQS.
3. July 15 meeting we will continue discussion of implementation
Welcome, Introductions & Review Goals for the Day (Donna Silverberg)
Donna welcomed the group, conducted a round of introductions, and reviewed the goals for the day:
1. Decide whether or not DEQ will move forward with a separate rulemaking for As, Fe, and Mn.
2. Review background pollutant issue paper distributed by DEQ and get input from work group members regarding which tool should be included in the rulemaking to address background pollutants in OR.
3. Outline DEQ’s approach on restoration water quality standards.
Separate Rulemaking for As, Fe, and Mn (Debra Sturdevant and subcommittee)
Debra said that the subgroup meeting that was scheduled for one week ago was cancelled due to a conflict with Nina’s schedule. Michael, Nina, and Deb talked yesterday to evaluate how much work needs to be done to bring a proposal to the group. Deb said that in order for DEQ to move forward with the proposed rule, there needs to be agreement with the group that the criteria are ready to go and that As is ready to be proposed. The members will not ask for additional rules to be added. A fiscal impact statement is needed. The goal is to minimize DEQ’s staff time needed for the separate rulemaking, so DEQ is proposing a 30-day public comment period, two hearings, and no extensions.
Michael drafted a proposal and sent it to the subgroup, but Nina is the only one who has commented so far. Michael will re-send the proposal and the group must submit any comments to him by 4/30. Michael will then send the proposal to EPA on 5/3 for their review next week. The subgroup will have their final discussion on 5/5 and then submit the proposal to the workgroup for a vote via email. DEQ will then put together the timeframe for the public notice, hearings, and EQC. (See Memo: Conditions required for DEQ to consider moving ahead, sent by Debra Sturdevant in an earlier email on 4/14)
Comments/Questions from RWG members and others:
• Question: Is approval from EPA necessary for DEQ to move forward? Is this a standard?
o EPA’s Answer: EPA is ok with the numeric criteria, but they are not sure if they will approve the rest of the proposal as a WQ standard. Jannine will get comments to the subgroup by 5/5 about this.
• Comment from CTUIR: The Tribe is in support of this if it helps permitees move forward and get their permits. The Tribe’s concern is the potential delay of the overall rulemaking process and the diversion of work within DEQ. The Tribe does not have a problem with the intent and goal of the policy, but if it delays the rulemaking timeline, then they would have a problem.
• What is the alternative to this proposal?
o Answer: As, Fe, and Mn would stay with the full package and not be adopted until mid-2011. If it is with the full package, it might take longer for EPA’s approval process. DEQ has an interim Arsenic policy that requires facilities to come up with a monitoring plan. DEQ is working with its analytical chemists right now on Quantitation Limits for inorganic As. They expect to be finished with this soon.
Issues still need to be resolved and that will happen via email. There is no more time planned to talk about this issue at workgroup meetings. Donna called for a straw poll of support for the outlined process using the 5-finger method (mostly 1s and 2s).
ACTION: Feedback from the group to Michael and Nina by 4/30 with input from EPA by 5/5. Once a decision is made, DEQ will put together a timeframe for approval for the group to see.
Review of 3 Tools to Address Background Pollutant Concentrations (Spencer Bohaboy)
Spencer, Deb, and Andrea gave presentations on General Permits, the De Minimus rule, and the Multiple Discharger Variance, respectively (see Background Pollutants Issue Paper). DEQ’s recommendation is not to develop the General Permit in this rulemaking. The Multiple Discharger Variance (MDV) is different than an individual variance because it would be approved by the EQC, rather than the DEQ Director. . DEQ’s recommendation is not to pursue MDVs at this time. Instead, DEQ recommends that the workgroup spend time developing De Minimus background concentration rules at this time.
Comments/Questions from RWG members and others:
• Question: Are these the only three tools for background concentration pollutants that we will discuss?
o Answer: These are the ones we will discuss today. The intake credit rule is still there and individual variances are a separate issue that will be discussed at the next meeting.
• Comment: The issue papers are getting too big for DEQ to expect the group to follow the process. They are good to have at the end, but not good for a targeted discussion. A one-page summary would be better for us.
o Response: The purpose of the issue papers is to document resolutions, decisions, and progress and keep the information together in one document.
• Question: The current general permit approach is based on a process. Can a GP be written based on a pollutant?
o Answer: The rules are limited to minor discharges (minor being either the activity or the facility). Although it might be ok to write a GP for an individual pollutant, it wouldn’t be ideal because the GPs focus on types of activities and treatment technologies for those types of activities.
• Question: Does DEQ’s recommendation mean that all MDVs are off the table?
o Answer: For this rulemaking, yes.
• Question: What tools are available for municipal dischargers?
o Answer: The only scenario that DEQ has been discussing where this can be applied is for background concentrations. DEQ isn’t aware of a situation with municipalities where they would use a MDV.
• Question: There is concern about #6, the 1% concentration change. They are envisioning a mixing zone or end of pipe.
o Answer: This is a key point that DEQ would need to address if this tool was kept on the table.
• Question: Would the De Minimus rule apply in a water body that is on the 303(d) list or if a TMDL is being prepared?
o Answer: De Minimus would apply where the criteria is exceeded in a waterbody upstream of discharge. It is not tied to the 303(d) listing process.
• Comments: Several group members supported the proposal. The MDV issue paper does not capture multiple problems that have been expressed. There needs to be more discussion of the 1% issue so it is clear. There needs to be preamble language that explains why the De Minimus approach is applicable in this case. All future problems should not be solved using De Minimus. A clear definition of De Minimus and background need to be provided. The group needs to address how to deal with the chain reaction effect on rivers.
Donna called for a poll to see the level of support for moving forward with DEQs recommendation for pursuing the De Minimus option. There was support.
A subgroup will work with DEQ on the details via email. They will have one meeting in-person and then De Minimus will be discussed at the June meeting. The 1% rule needs to be discussed in June. DEQ also needs to address how this deals with quantification levels and how they exist now and how they may exist in the future. The subgroup will discuss what the allowance is before choosing numbers. A technical person should be present to discuss the issue. There needs to be a conference call with the whole group to have a conceptual discussion of the allowance first, and then have subsequent drafting of the rule language which will be discussed at the June meeting. If anyone has any other approaches that have not been identified, they need to be submitted to DEQ before the conference call.
Restoration WQ Standards (Andrea Matzke)
Andrea discussed the issue paper on Restoration WQ Standards. DEQ has been looking into this issue and got a lot of information from the proposed Florida rule. It is a water body specific WQ standard. Jennifer talked to her counterpart from FL and noted that the general feel this is not a feasible tool to use and they aren’t seeing a lot of support.
• Comment: We need to have a conversation about this due to the flexibility under the CWA in situations where it was noted that the CWA wasn’t showing a path to get to clean water. There does not appear to be a step-wise plan to get to where we are going. It appears that a standard will be imposed and must be enforced by such-and-such a date. DEQ needs to think about the compliance path and when they will expect industry/municipalities to come into compliance. There needs to be an explicit conversation about this and delayed implementation. DEQ staff resources need to be addressed. Who would do the economic analysis of the variance, for example? These issues need to be on the agenda.
o Response: The chosen path requires us to use what tools are available and the group has not yet decided on these tools. Managers can’t determine what kind of staff resources will be needed to implement the new standards until the suite of tools is selected. The statement of need and fiscal impact will be prepared for this rulemaking and the group will get to review it. As to the Florida tool, it would require a LOT of staff time to develop the incremental standards being suggested in that approach.
• Comment: One work group member has been talking with Florida and EPA and heard they are “cool to the proposal” because it is UAA based. In lieu of restoration standards, we could focus on sources that need longer terms. We can’t undermine the standards just to meet the needs of certain sources. The step-wise plan looks very similar to a TMDL which can get us to the right place.
o Response: Jannine said she previously requested for folks to come forward and let her know the parts that would make sense, but she never got specific feedback from anyone on elements to move forward with.
o Response from DEQ: What EPA has created in FL is too restrictive for what would work in OR. We can take some things from them and change them to make them work for us. DEQ understands the broader, step-wise compliance/implementation issues out there, but haven’t worked on the options yet. This will happen for the June 30 meeting.
• Comment: Work group member is not happy with the examination of a step-wise approach for coming into compliance.
• Comment: If DEQ does not pursue this now, when would they? Is this different than the Hg TMDL in the Willamette? When would DEQ make the determination of how to pursue different options?
o Response: DEQ has considered options that we can actually move forward on.
Summary:
1. Restoration standards as discussed in the FL rule,could be explored in OR, but there has not been a specific waterbody identified to develop interim WQS that would be required for inclusion in this rulemaking. If a waterbody is identified in the future, further analysis could be done to determine whether or not restoration standards are appropriate for this waterbody. If appropriate, a separate rulemaking would be conducted.
2. Stepwise issues will be discussed during the delayed implementation discussion once more of the details are worked out. This will be in June.
Next Steps/Wrap Up (Donna)
May 20 Agenda:
• Variances
• Alternative to variances: NPDES compliance for pollution prevention.
o DEQ asked ACWA to write up their idea. Dave distributed the idea today.
• Update on Arsenic
The Background Pollutant Allowance was moved to the June meeting.
Need to use July 15 meeting to discuss implementation issues.
Andrea is working on the criteria table that will be included in the rules. DEQ will do an internal review of that in June and will ask for a functional review from this group.