August 6, 2009 Meeting
FINAL Facilitator’s Summary
The following notes are a summary of issues discussed and issues that may need further discussion at upcoming meetings.
Present for all or part of the meeting:
Workgroup Members: Nina Bell (NW Environmental Associates), Michael Campbell (Industrial Dischargers), Lauren Goldberg (Columbia Riverkeeper), Charles Logue (ACWA), Mark Riskedahl (on phone, NEDC), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (on phone, CTUIR), Kathryn Van Natta (Northwest Pulp and Paper).
Other Representatives: Marganne Allen (on phone, ODA), Kathleen Feehan (on phone, CTUIR), Summer Goodwin (EPA), Ellen Hammond (on phone, ODA), Jannine Jennings (EPA), Annette Liebe (DEQ), Melinda McCoy (EPA), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ).
Also Present: Donna Silverberg and Erin Halton, DS Consulting Facilitation Team.
DEQ’s Recommended Interim Permitting Approach for Arsenic
Annette Liebe, DEQ, referred the group to a July 21, 2009, memo and said DEQ was looking for feedback on the recommended interim approach for arsenic. Liebe noted that, in previous rulemaking meetings, the group has discussed the currently effective arsenic criteria for human health and those adopted by DEQ/EQC in 2004, as well as issues surrounding natural background levels, impairment listings, and the recent lowering of quantification limits for arsenic. She noted that the criteria adopted by DEQ in 2004 have not yet been approved by EPA. She also noted that nearly every source up for NPDES permit renewal is likely to have reasonable potential to violate the currently effective human health criteria for arsenic, thus leading to the need to develop an effluent limit, and that no source can meet the 0.0022 µg/L criterion for arsenic. While DEQ plans to propose revised human health criteria for arsenic as part of the rulemaking effort, issues surrounding how to address effluent limits for arsenic remain in the interim. So, DEQ is looking for an interim approach for permits between now and when EPA approves DEQ’s proposed human health criteria for arsenic which will pertain to both “water plus organism” and “water only”.
Liebe went on to explain details in the DEQ memo and the thinking behind it, inviting ideas and input from the group. With regards to the criteria, she clarified that “organism only” means fish ingestion and “water + organism” includes drinking water as well. She noted the significant difference between the criteria currently approved by EPA and the criteria DEQ is planning to propose as part of this rulemaking effort. She walked the group through the various options that DEQ has been exploring which are laid out in the memo: 1) general reasonable potential analysis process/no change; 2) use of individual variances; 3) increase the quantification limit to 1.3; and, 4) administratively extend permits. DEQ’s recommended option is one identified as a “comprehensive monitoring strategy.” To summarize, the DEQ-recommended approach would include the following steps (refer to July 21, 2009, memo for complete details):
1) Permittees must confirm that anthropogenic sources of arsenic are actively being addressed via best available technology (BAT),
2) Permittee will be required to develop and implement a monitoring plan that includes collection of ambient and effluent data for total and inorganic arsenic,
3) Results will be evaluated midway through (2 ½ years) the five year permit.
4) At the end of the five year cycle, if the preliminary data indicates the potential for an affirmative RPA finding, an effluent limit would then be assigned for arsenic.
It is likely that the new human health criteria for arsenic being developed under this rulemaking effort would be adopted by that time and DEQ would have a better sense of the implications of the new rules. She expressed hope that, by the time an individual permit is renewed, whatever data is needed for the rule implementation would be in hand. Liebe acknowledged this recommended option might be a challenge for some to accept, as it means delays would be likely for a water quality-based effluent limit and since DEQ may be vulnerable to third party lawsuits for failure to establish an effluent limit
Questions/Comments from Rulemaking workgroup members:
• Question: would DEQ’s recommended approach apply to all NPDES sources? Answer: no, this approach would apply to major NPDES sources (>1 mgd - i.e., those that have to do complete priority pollutant screening).
• Clarify: would DEQ’s recommended approach apply during the timeframe between now and when the new criteria under development as part of this rulemaking effort are approved by EPA? Answer: yes
• Follow-up Recommendation - would suggest that sources not be discriminated against because of where they are in the permitting process. In other words, monitoring data should still be collected by sources with permit renewal occurring after EPA’s approval of the new criteria. Response: We would still gather data, but perhaps not total arsenic (just inorganic arsenic).
• Question: Does EPA agree with the process that Washington State uses to address human health criteria for arsenic (which is similar to DEQ’s recommended approach)? Answer (from DEQ): Washington actually has more flexibility than Oregon because of where they are in the process of EPA review (Washington’s human health criteria for arsenic were promulgated by EPA in 1992, and are equal to the values Oregon adopted in 2004 (i.e., are higher than Oregon’s currently effective criteria)). Answer (from EPA): DEQ and EPA will be coordinating closely, and feedback from this group will help in that conversation.
• Question: seeing that step 1 refers to BAT; what if there were no BAT?
o Answer/Action: that is a good question, DEQ will get back to you; we suspect DEQ could use best professional judgment (BPJ) instead.
• Clarification: DEQ is not implementing those criteria adopted in 2004 that became less stringent, but is implementing those criteria adopted in 2004 that became more stringent.
• Comment: It seems odd to set up monitoring for total when we suspect the final criteria are going to be based on inorganic arsenic. Answer: DEQ believes that we will need to collect total arsenic data, per the guidance released last summer. Also, even if the source is not listed, DEQ is using a quantitation limit of 0.5 µg/L; DEQ acknowledges the need for an effluent limit.
• Question: can DEQ estimate how many “majors”/facilities the DEQ recommended approach might affect?
o Answer/Action: DEQ can provide that information to you.
• Comment – one of the rulemaking workgroup members offered support for having an interim policy to deal with this.
• Question: is there a way to develop a blanket, multiple discharger variance for this? DEQ’s recommended approach does not appear to provide a “shield” for protecting permittees from potential third-party lawsuits over the lack of inclusion of a WQBEL. Answer: This risk does exist with DEQ’s recommended approach; however, use of a multiple discharger variance would require rule changes to Oregon’s current variance authorizing provision. While we could pursue an emergency rulemaking, such a change would likely be a resource intensive and lengthy process. We think DEQ’s recommended approach is the best approach, but also acknowledge that we need to check on the option of doing a multiple discharger variance - which again, EPA would need to approve – and we would also need to prove the effects of widespread economic hardship.
• Question: regarding DEQ analysis of a regulatory streamlining approach for addressing arsenic in the interim, from a permittee’s standpoint, did this option seem to be the least burdensome? Answer: Yes, this option is the least burdensome administratively and allows the agency to take action more quickly.
• Question: can you remind us of the costs associated with arsenic speciation sampling? Answer: we believe it would be $150 more than sampling for total.
• Comment: the variance approach does not look good timing-wise, but it does seem like an emergency rule for six months might work, especially if we could do two in sequence. Answer: If we’re doing multiple-sources, the state variances would require a huge amount of agency resources in terms of documenting each individual variance and we would not want to see that precedent set.
o Response: we could perhaps identify which permittees would be affected and then circle back to the issue of arsenic as naturally occurring and, because of the order of magnitude, we might find a less resource-intensive approach. We would need to talk with EPA about the level of specificity that would be needed.
o Considering how variable arsenic is, we find it hard to believe that EPA would be able to settle on one level that could be considered “natural.”
• Clarification: while DEQ does know how many facilities would be subject to data collection, the existing arsenic data on is variable due to variable quantitation levels and is not a complete data set.
• Question: Will 303(d) listings for arsenic decrease? Answer: DEQ clarified that listings are currently based on total arsenic levels. The assessment program will need to consider the issue of de-listings for arsenic once the new criteria under development as part of this rulemaking are approved by EPA. Since the current listings are based on total arsenic, but the new criteria would be for inorganic arsenic, it is not clear yet how de-listings would be approached.
• Comment: seems like the main issue standing in the way is the threat of a third party lawsuit, but we think there are not that many groups who would file against a permit; we hope that we could help to solve such problems with conversations and outreach.
• Comment: suggest DEQ incorporate language that would give the agency support if they worked through an MAO (mutual agreement and order) process. At the very least, develop a basic template that includes the agency’s thoughts and intent on this issue and a FAQ sheet to support the action.
o Action: DEQ will follow up with Larry in the legal department and get his perspective on this issue and will also work to get permit and fact sheet language drafted.
• Question: what happens if we go through this process and the revised arsenic criteria aren’t approved? Response: EPA has heard a commitment from the R10 OWW office director and headquarters to support DEQ’s process on this issue. The agency has invested a lot of resources to this effort and would like to see the rulemaking go forward, including resolution of this issue.
DEQ asked the Rulemaking workgroup to express their level of support for the interim permitting approach for arsenic as discussed today.
• Comment: while we believe the need to avoid third-party lawsuits is important, we are also concerned about the resource implications of pursuing a variance option as the interim approach. We suspect that the litigation process might take so long that lawsuits would be moot anyway. We want DEQ’s resources to be focused on the final solution (revised human health criteria for arsenic).
• Comment: I don’t think the Tribe would be inclined to object to DEQ’s interim recommended approach. We appreciate the workgroup discussion thus far. A solution is certainly needed, and if we can gain data that is needed through this process, then all the better. We would like a bit more time to review.
• Comment: while we support the concept, there is concern regarding the interpretation of “multi-variance” and it will be important to see the agency’s response to using BAT/BPV
• Comment: while we support the concept, it will be important to realize that for industries, this regulation still puts us at risk for 3rd party lawsuit. If subject to permit appeal, it is very expensive for a regulated entity. However, the regulatory uncertainty that exists in the Water Quality program is huge, and this seems like a patch on a regulatory process that isn’t working. We do commend the agency for coming up with an interim solution. The FIIAC foresaw this as an issue and this is still an issue that needs long-term resolution.
o Comment: support some level of concern that this might distract the agency from finding a long term fix.
• Comment: because some of the rule changes may apply to issues beyond those revolving around the protection for human health, it is certainly conceivable that some revisions may have to move through ESA consultation. So, splitting the variance rule into one applicable to human health criteria and one applicable to aquatic life criteria seems like a viable option.
• Comment: am guardedly optimistic about the approach. From a permittee’s perspective, support the concept of monitoring, but am not convinced that we need to monitor for total arsenic. Why is mass factored into the equation? Answer: we want to have that information in case it is needed, for example, in determining whether an intake credit can be utilized. Response: Then, I would recommend including additional implementation discussion on this issue in the memo.
• Comment: while we understand the issue and how DEQ came to this recommendation, we are not yet supportive. We are concerned about the potential for a third party lawsuit (our facility having recently experienced one) and about the fiscal impacts of ambient monitoring, as well as placing the burden of additional data gathering on small communities.
Action: DEQ staff will be working to address the comments put forth by Rulemaking group members thus far. They will provide a list of the facilities affected, address the BAT questions, and develop draft “fact sheet” language and expand on what happens post-rulemaking.
Action: Workgroup members were invited to email any additional comments they may have to Annette or Jennifer at DEQ by no later than 8/14.
Arsenic – Anthropogenic Sources Provision
Debra Sturdevant referred the group to a handout that provided an update on the anthropogenic sources subgroup’s work. She reported that the subgroup has met twice since the last rulemaking workgroup meeting. She clarified that language in handout regarding tentative agreement is deliberately vague, as the subgroup is still sorting out what the rule would say. A more detailed report, likely including proposed rule language, will be provided to this rulemaking group prior to the September meeting. Sturdevant also noted that an overlap exists between this subgroup and the mixed media sources subgroup.
Action: DEQ will email out the digital version of the handout shared during the meeting. Peter Ruffier will help provide feedback to the Anthropogenic Sources subgroup – they will next meet Monday the 17th at 10:30 am.
Variances
Debra Sturdevant, DEQ, referred to a summary handout that described the objectives considered in identifying potential rule language revisions to Oregon’s current variance provision. She noted that the hope is to clarify the current rule language and to streamline the administrative process for granting individual variances. She also noted that potential draft revisions are provided in the handout for the workgroup’s consideration, including:
• a change to allow DEQ to grant a variance
• changes to align the public notice for the variance with the public notice for a draft NPDES permit,
• a change to allow the duration of the variance period (i.e. not to exceed 10 years) to be specified in the variance itself (which could also include language to address what happens if a variance expires before a permit is renewed),
• revisions to clarify the conditions that might apply during the variance period such as minimum effluent limits, source reduction or pollution prevention programs to help minimize loads, even trading/offsets to achieve further reductions;
• a change to provide an opportunity for multiple discharger variances, if it was deemed appropriate.
The discussion was opened up for questions/comments from Rulemaking workgroup members:
• Question: can you say more about multiple discharger variances, and the DEQ perspective? Answer: so far, we are thinking in terms of a similar class of facilities dealing with similar pollutant(s)-specific scenarios (see language under “1-A.”)
• Comment: suggest we should go no further into developing rule language before we have discussed policy aspects so we can all stay conceptual at this point.
• Question: has DEQ made any final decisions regarding a subgroup for variances? Answer: we heard earlier in the process that a subgroup on variances might not be useful (timing-wise relative to the permit process), so we did not plan to form a subgroup specific to variances, but we certainly could. As a first step we could discuss what other states have done, give this group the chance to review the objectives and then see if we need more conversation as a full group and/or develop a subgroup.
• Question: what would variance provision apply to? Answer: they would not be specific to any one type of criteria (e.g., human health or aquatic life), but rather would streamline the process for requesting and granting a variance regardless of the type of criteria (note- the current variance authorizing rule applies to both aquatic life and human health criteria). As is the current situation, at least one of the six factors at 40 CFR 131.10(g) would still need to be met. Because variances are considered a “standards change,” they would also still need to be submitted to and approved by EPA before utilization.
• Comment: suggest we might consider separate rule provisions (one for human health and one for aquatic life); this would discourage the use of variances for aquatic life criteria and may help improve EPA approval timing/ESA consultation issues.
• Request: suggest that people ask themselves what they want/need from this tool and whether they know of facility/pollutant combinations for which a multiple discharger variance would be a good solution. As variances are not currently being used, we need to also consider the requirements for ESA consultation and clarify when/why they would need to occur.
Action: EPA will confer with staff and get back to the group on this aspect.
Regarding Streamlining:
• Question: If granted by DEQ (as opposed to going through EQC rulemaking), would these actually be considered changes to the standards? Answer: we did check with DEQ’s legal staff and yes, and he thought it would be. Response: Suggested that Larry look at 468B.048 as this answer may not be so clear on this point.
o Comment: from the EPA perspective, for variances that have been granted by state environmental agencies but don’t go through a state rulemaking process, we have seen a pattern of EPA approval as long as the process used to grant the variance is allowed under state law and the variance is submitted to EPA.
• Comment: in the handout, suggest separating the issues of who may grant a variance and the issue of how to make public the lists of variances that are granted.
• Comment: support expressed for making the list of variances granted available to the public.
• Comment: a view was expressed that streamlining the variance process for the revised human health criteria under development as part of this rulemaking should be considered separately from the process for allowing variances for the remaining criteria that are not being revised (e.g., aquatic life criteria); commenter was uncomfortable in streamlining the variance process across the board.
• Comment: the option of DEQ granting variances rather than have them go through EQC rulemaking could lead to abuse; it isn’t today’s department leadership that we’re concerned about, but rather those who may come along in the future.
• Question: what is the degree to which quantitation limits are expected to override all the new, more stringent criteria? Answer: DEQ’s initial estimate is that about 40-45 % of the current criteria are below quantitation limits and that about 60% of the new criteria will be below QLs.
▪ Action – DEQ will email the group quantification limitsand check our estimates of how the new criteria compare.
• Question: how long does DEQ envision it will take to get a variance and what will this add to the permit renewal timeline? Answer: DEQ intends to work closely with EPA to align the variance review and approval processes both within DEQ and EPA internally and across the two agencies. We do know that the amount of time needed is highly variable depending upon the type of scenarios needing to be addressed and the amount of data available. A recent variance renewal in Idaho only took six months; they had a lot of data available already and it was a permit that EPA was writing itself. We know of some variance approvals by EPA that occurred within 30-60 days.
o With DEQ and EPA working closely on variances, there will be shared timeline expectations and both agencies will be well prepared when the request is submitted.
o Again, the group will need to consider including timelines in the variance request itself.
• Comment: thought that we might address variances as relative to the new human health criteria vs. a blanket variance that would apply to all Oregon waters. We should always remain mindful that even slight changes to standards can have huge changes on the ground.
o Response: it is important to also remain mindful that this is a new process; suggest that we prepare for a scenario that would allow permitting to continue in the meantime and have the variance apply to both situations.
• Comment: arsenic is going to be an economic issue and it is pretty unclear as to where DEQ places it on the continuum of all else that is happening. The hope is that balance is achieved so that the variance itself doesn’t become a burden.
o Comment: variances would be for point sources, but we also need to consider other sources and bring them into the fold of total toxics reduction effort. We need to be able to authorize/grant variances without impacting overall water quality efforts underway.
• Comment: if we’re going to take the cost of treatment into account and “give a pass”, we still want facilities to take responsibility for their loads. While we would prefer to look at this in terms of keeping costs as low as possible so we’re not putting people on the verge of bankruptcy, we also need the reductions in order to make progress towards meeting the criteria.
• Comment: regarding the information that will be required, we would suggest applying for a department-related variance vs. a permittee-related variance, but more information is needed to help us figure out what will be most suitable.
• Question: does EPA know of any instances of variance abuse? Answer: in the past, there may have been instances in other states that people here in Oregon would consider abuse. However, my sense is that there are several states that have figured out how to carry them out appropriately and variances have worked well for them administratively.
• Comment: suggest separating our discussion into two parts – let’s focus this discussion on individual variances and discuss multiple-discharger variances in this afternoon’s session.
• Question: where is the line between needing a variance vs. a compliance schedule? Answer: The line is between uncertainty and certainty. Where there is an identified control technology that would work for the source, it requires a compliance schedule (with a schedule and milestones for meeting the effluent limit at a future point in time.) If control technology is not available to meet the effluent limit, then a variance may be the appropriate tool (i.e. if you’re not certain that you can meet the requirements, then you need a variance).
• Comment: a 10-year scope might make a variance more appropriate, as it would provide time to re-evaluate economic circumstances.
o However, if it was deemed inconceivable that new technologies would be developed and/or it would be too financially burdensome, one can see how that determination would get wrapped up into economic analysis.
o What if technology exists, but implementing such technology would cause widespread social and economic impact? Could a variance be allowed for a time and then let a compliance schedule come into play?
o Water quality limits may come into play as well, but it depends on how far you could get with a variance that would determine whether or not you need a compliance schedule.
• Comment: 10 years seems like long time. Response: in drafting the 10-year concept, we do not envision that a 10-year time frame would be appropriate for every situation. For example, for some situations, a variance may only be appropriate for 3 years or 5 years. Since the duration for the variance would be specified in each variance (i.e., would be subject to review/approval by the department and EPA), the appropriate duration can be determined within the context of a specific scenario. The purpose for the 10-year duration maximum was to put some sort of upper limit in the general variance authorizing provision. Because the applicable duration for the variance would be specified in each variance, there is also flexibility to include a clause to address the situation where a variance expires before a permit is renewed as part of each variance request. Also, note that the triennial review would still apply.
• Comment: this conversation really helps and I would like to be part of smaller group conversations if possible.
• Question: where does Oregon’s anti-degradation fit into variances? Answer: it doesn’t, because whatever a permitee’s level has been is what they are bound to maintain (i.e., anti-backsliding). For new or increased discharges, anti-degradation would apply independent of variances.
o Question: so say there’s a request for a new POTW in Washington that would discharge into a waterbody that is already exceeding the water quality criteria, could they meet antidegradation requirements if they applied for a variance? Answer: we do see what you’re referring to here (i.e., anti-backsliding wouldn’t apply because this is a new facility). The tier 2 anti-degradation review is intended to apply when new or increased discharges are proposed in a waterbody with water quality higher than that needed to support uses. Since the situation you are talking about is one where the ambient water quality in a waterbody does not currently meet criteria for a pollutant, you’re asking whether a variance could be granted to a new facility in order to allow new or increased discharges of a pollutant into a waterbody that is already exceeding the criteria for that pollutant.
• Comment: regarding the six justification factors for a variance, the language is very open to interpretation. Response: while the economic justification for a variance may be more difficult to support, it is also the one most likely to be applicable and understood for many situations.
• Clarification: at a minimum, we would need to assess whether facilities are continuing to achieve the same levels they have in the past. The real question might be to decide how to set interim limits. We could address this by assessing whether the entity continues to be responsible for their load. These are the kinds of clarifications and conditions that could be included in the variance rule and/or process.
o Comment: in cases where there may not be an interim limit, we could presume coverage by anti-backsliding provisions. We would also still need to sort through the other array of criteria that guide a facility toward requirements for a variance or a compliance schedule.
o Comment: there might be a case where two facilities have the same pollutant, but different expectations on how much the source can be expected to treat. Again, this affects what interim limits are set.
• Comment: as we look to move forward, not very confident that variance is a good option for very many cases. However, it could certainly be helpful to have this tool available to us if we need it, but it should not be the centerpiece of options.
• Comment: if it were feasible within the variance, we could build in “half steps” – and thereby condition the variance, with clear timeframes.
NEXT STEPS: DEQ can certainly understand there are difficulties in trying to guess at what scenarios may come to pass. During today’s conversation we have heard that we need to clarify the expected variance conditions and whether/how to build some safeguards into the process to prevent variances from being abused, especially if we were to change from an EQC oversight process to a DEQ director oversight process. Recommendations that go to the EQC require a lot more preparation and work for everyone and one of our goals is to make the process less costly for everyone, without minimizing the regulatory function. We appreciate the feedback from this Rulemaking group on how to improve the variance process (i.e. how decisions get made, what categories could be formed that clarify where commission decision.)
Action: EPA will provide more examples of what has been done in other states and send that out to the group via email. Rulemaking group members can send along situations where there might be specific facilities/pollutant combinations (i.e. copper, ammonia) that they would want to call to DEQ’s attention as they relate to variances/impacts to water quality standards.
NPDES Implementation Issues
Jennifer Wigal, DEQ, referred group to a handout that had been revised based on the last Rulemaking workgroup meeting. She asked the group to provide feedback on the revised document:
Under Principles:
• #3 – suggest include “preference for those strategies that address multiple benefits or address multiple problems” (could also be an outcome)
• #3 – Seems like it contradicts 6-a?
• #4 – comment: trading is low-level and that is good, so may need caveat
• #5 – take agency out
• #7 – clarify that you are not assuming default values and
o Re-state for 7-a) “absent adequate data, take a precautionary approach.”
o Suggest 7-c) “do not postpone data gathering.”
o Note: gathering of ambient data should be relevant to the priority pollutant scan.
o Suggest add to 7-b)“sources and agencies should be jointly responsible”
• #9 – clarify that understanding this is what’s important
• #11 – suggest that if going to use phrase “upstream”, speak broadly and perhaps use, e.g., “up the waste stream.”
Under Problem Statement: need to include background aspect
Under Implementation Tools:
• Clarify that you mean “level to which can be consistently measured and quantified”
Those Rulemaking workgroup members that speak from a source perspective shared the following comments on the Implementation tools section:
• #1, 2, 3, 4, 5, 7 can already be done without the rule.
• If going to contribute to one standard, trading could help.
• Regarding #7 – when have levels of 50-60%, that’s what we end up doing anyway. But we do need to keep this in mind as an option
• #8, 9, 13 can already be done without the rule
o Comment: #13 would be very hard for the agency to do without a dynamic permit. This might be more appropriate for conventional pollutants like ammonia and might also remind folks of the de minimus notion.
• DO intake allowance credits and remember concentration issues and the need for flexibility that isn’t quite there yet. Things like mass and chemistry tend to change and these need to work on the ground at a facility that has an issue with – for example – PCB’s.
o Suggest maybe agencies could think about time and concentration and how they could make a multi-variance solution work
o Regarding concentration, have to remember to look at intake water.
Action: DEQ will do a bit more fleshing out of the aspects that have been identified by members of this group. The will ask the Rulemaking group will use email communicate between now and the next meeting. If they identify areas where a “subgroup” type of sounding board could be helpful, DEQ will help get one coordinated.
Next Rulemaking workgroup meeting: September 15th
These notes drafted and submitted by the third-party facilitation team from DS Consulting. For comments or changes, please contact Erin Halton at ehalton@cnnw.net or 503-248-4703.