MATZKE Andrea; 'Erin Halton'; 'Lauren Goldberg'; CAMPBELL Michael; 'Peter Ruffier'; 'Ryan Sudbury'; 'Nina Bell'; 'Kathryn VanNatta'; 'Rich Garber'; WIGAL Jennifer; 'Dave Kliewer'; 'Kathleen Feehan'; 'Mark R'; BOHABOY Spencer; 'Debra Surdevant'; 'Ellen Hammond'; 'Dave Wilkinson'; ALLEN Marganne; 'ACWA'; 'Donna Silverberg''Mary Lou Soscia''Jannine Jennings (Jennings.Jannine@epamail.epa.gov)''McCoy.Melinda@epamail.epa.gov'

Summary of Concerns

A.   Need for more discussion/clarification in general

B.  Overall usefulness

C.  Interpretation on how 131.10 language for removing a DU apply to variances (since 1976)

1)  Strict interpretation—more conservative view of how variances are implemented

2)  Flexible interpretation—focus on facility implementation, as opposed to a removal of a DU for a waterbody. It’s discharger and pollutant specific and for a limited time.

Specific Concerns

1.  131.10(h)(1) existing use language—“…variance may not result in any loss or impairment of an existing use.”

◦  How does this apply to a discharger variance, as opposed to removing a DU?

◦  How do you define “loss or impairment”?

◦  EPA HQ

2.  131.10(h)(2) – “…must demonstrate that implementation of all cost effective and reasonable BMPs for NPS cannot correct the underlying WQ problem”

◦  Previously discussed by EPA in GLI

◦  DEQ has revised language in variance regulation to reflect this interpretation

◦  EPA HQ

3.  New facilities

◦  In principle, variances shouldn’t be allowed for new facilities, since the idea is to not further degrade a waterbody; however, are there exceptions?

i.  Clean up sites?

ii.  WWTP in lieu of onsite systems?

◦  Other states have included exceptions

I.  Imminent threat to public health or welfare

II.  CERCLA actions

◦  Other exceptions?

4.  Renewal confirmation

5.  AL applicability

◦  Thus far, the focus has been on meeting the revised HHC, but the proposed variance regulations, as w/ the current regulations, also includes the inclusion of possible variances based on the AL criteria

◦  We do not anticipate variances from AL criteria, but we would look critically at these requests and would work closely w/ EPA if any were requested. ESA consultation would be required.

◦  The decisional regulatory framework is there already

6.  Duration of variance

◦  Coincide w/ NPDES permit

◦  Remains in effect as long as the permit is in effect

7.  MDVs…