July 13, 2009 Meeting
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 (on phone, Columbia Riverkeeper), Llewellyn Matthews (Northwest Pulp and Paper), Mark Riskedahl (on phone, NEDC), Peter Ruffier (League of Oregon Cities), Ryan Sudbury (CTUIR).
Other Representatives: Kathleen Feehan (on phone, CTUIR), Summer Goodwin (EPA), Ellen Hammond (on phone, ODA), Jannine Jennings (EPA), Dave Kliewer (ACWA), Annette Liebe (DEQ), Neil Mullane (DEQ), Melinda McCoy (EPA), Debra Sturdevant (DEQ), Jennifer Wigal (DEQ).
Also Present: Donna Silverberg and Erin Halton, DS Consulting Facilitation Team.
Welcome/Updates/Scheduling
Facilitator Donna Silverberg welcomed everyone to the meeting and conducted a round of introductions. The following updates/events were discussed:
• The next broad Toxics Stakeholder Group meeting will be held on 8/5 and the next Rulemaking workgroup meeting will be held on 8/6.
• No further edits to the notes from the 6/17 meeting were made during the meeting so the final draft will be posted to the DEQ website along with notes from prior meetings.
• There will be a one-day workshop on July 30th that will focus on characterization of PCBs in the Lower Columbia and Willamette Rivers, monitoring efforts, and reduction activities with the hopes of highlighting recent work on PCBs and
exchanging information on successful strategies to reduce PCBs in the
Columbia River Basin. See registration information at the following link: http://pcbworkshop.eventbrite.com
• The University of Washington’s School of Public Health will be hosting a workshop August 12-13th; Kathleen Feehan, CTUIR will be one of the speakers for the event.
• DEQ is sponsoring a water quality standards academy that will be held the week of October 26th at the Federal Building in Portland, OR.
• The American Water Resources Association will be held in Seattle November 8th-12th; there are four DEQ presentations scheduled for the event.
Project Task / Timeline
Jennifer Wigal, DEQ, referred the group to a handout describing milestones and estimated timelines for the rulemaking and clarified that revisions to the timeline were made based on the meetings scheduled and the scope of what still remains to be discussed. Given the need for meaningful, sustainable discussions amongst the group on several more topics, Jennifer noted that presenting to the EQC in October was too soon. While there will be a Director’s Dialogue added to the October 2009 EQC agenda, DEQ plans to present the detailed draft rule information to the EQC in February of 2010. A workgroup member asked whether some of the process could be streamlined, as aiming for EQC adoption in October 2010 and submitting the standards to the EPA in December 2010 seems like a long way off. Many permit holders have concerns about further delays to the permitting process. Also, given the efforts currently being put forth by this group and others working with DEQ, it seems that changes are unlikely once this group develops a recommendation. Neil Mullane, DEQ, said that he understands the perspective being shared and will work to present the rule package for adoption by the EQC in August 2010 (instead of October). In addition, DEQ staff will coordinate with Larry Knudsen to shorten the time frame for obtaining the AG’s rule certification and submitting the rule to EPA. EPA said they are hopeful to provide a short turnaround for acting on the submission and will continue to coordinate internally with the permits program in the interim to foster as much completion of the work “up front” as possible.
Multi- Media Sources
Jennifer Wigal, DEQ, said that the work effort under this title is that of the formerly named “non-point source” group; the name has been changed to the “multi media sources” group to reflect the work being done and is comprised of Nina, Peter, Charlie, and Ryan. They have been meeting with Neil, Jennifer, and others in DEQ to discuss how other (“non-NPDES”) sources contribute to water quality impairment. Neil noted that they have been working for 2 or 3 months to look at mechanisms for making cross media linkages. The question they asked themselves was, “is there a path that DEQ could embark on to enable reduction efforts in water to be realized?” They worked with the AGs office to review existing regulatory processes and did not see as many opportunities for crossover between media as they would have hoped. The subgroup discussed TMDL source analysis as one model tool, acknowledging that regulatory and statutory impediments exist. The following comments and suggestions were discussed during the meeting:
• Comment: Air’s toxics rules might be a good resource. Mechanisms may exist that we could build on—just need to get the scientific data to support links to contributions. Subgroup members said they have discussed this resource and have been looking at sources found in other media that affect water/ toxics reduction, whether they originate from land or air. They also have assessed how to define triggers, what steps could be taken, and whether it is it available to DEQ to make reduction efforts.
• Comment: There is a TMDL process for addressing non-water based sources that contribute to water. However, it is important for TMDLs to clearly identify non-NPDES sources as significant contributors where this is the case. We’re aware that any triggers/controls that the sub-group develops would have an effect on air/land triggers as well.
• Comment: We’ve also been reviewing pre-treatment criteria to see if can make them more stringent. In making this a cross-media effort, we will better know where to focus. We think this effort will be best approached by looking at the priority pollutants to see which cross with the land/air program priorities.
• Comment: For industry, this needs to be manageable and the identification process needs to work for both minor and significant contributions (i.e. work well for the “exceptional” case).
• Comment: The 303(d) process is an attractive avenue because it ties into an assessment that is already being done, so dischargers do not have to spend millions to prove they aren’t a problem in a permit-by-permit approach; thus the 303(d) process could identify the “significant” sources with less effort.
• Question: Can you give an example of stationary source? Answer: Lead in the Columbia increased and became someone else’s (local government’s) problem instead of the original source (steel). One goal of this process is to appropriately identify original sources.
• Suggestion: Modeling could help; does DEQ have the regulatory authority to authorize this? Answer: Only if that source does the modeling/monitoring. The Air Quality Title V Permitting might be appropriate, and the Air Toxics Program would be the place to interject on a contributor that also affects water.
• Comment: Washington State’s efforts suggest that air laws are working well.
Action: The subgroup intends to continue with its cross media approach as will DEQ’s “Team Toxics”.
Manganese
Debra Sturdevant, DEQ, referred the group to a handout describing DEQ’s recommendation for revising the manganese criteria. She noted that for the water + organism human health criterion, the end point is based on taste/laundry staining. DEQ does not feel they need manganese criteria to address taste/laundry staining or for human health protection, since background levels are well below levels of concern. However, Oregon’s narrative toxics criterion is available to address these endpoints if the need arises. Therefore, DEQ recommends removal of the 50 ug/L manganese criterion. For the organism only criterion, DEQ recommends retaining the 100µg/L criterion. However, DEQ recommends applying this criterion to marine waters only, as the criterion was derived to protect human health from consumption of marine mollusks and current bioconcentration data indicate higher levels of bioaccumulation in these organisms. Debra also noted that, based upon available bioconcentration data, freshwater organisms do not appear to bioaccumulate manganese at high rates.
• Question: Is manganese hardness-dependent? Answer: No. Question: What is the degree to which EPA would have to take action? Answer: EPA would need to take action on the withdrawal of the 50 ug/L criterion, but anticipates that the justification for taking action on the removal would be straightforward. EPA would need to determine whether application of the 100 ug/L to marine waters only would need to be approved as a clarification or as a criteria revision, but either way, application of the criterion to marine waters appears consistent with EPA’s 1986 Gold Book guidance on manganese.
• Question: How consistent is this recommendation with those approved in other states? Answer: Fairly consistent, yes - Missouri is one that withdrew for same reason and other states have also withdrawn other taste/laundry staining-based criteria (e.g., iron) for similar reasons.
Consensus: All Rulemaking Workgroup members said they supported the DEQ recommendations as written.
Arsenic Anthropogenic Sources Criteria
Debra Sturdevant, DEQ, reported that the subgroup comprised of Nina, Michael, Rich, Kathryn and Ryan had met twice so far. She referred the group to a draft document that described the subgroup’s objectives. Because DEQ is recommending numeric human health criteria for arsenic that represent a higher risk level than DEQ uses for most of our toxics criteria, due to naturally occurring concentrations , DEQ agreed to also consider including a provision in the water quality regulations that would limit anthropogenic additions of arsenic to streams with ambient arsenic levels below the numeric criteria but above some defined level (e.g. the calculated value at 10-5; the 0.5 µg/l quantitation limit, etc.). The subgroup was formed to work on development of such a provision. Debra noted that the subgroup plans to meet again next week to try and develop a couple of options using the “rule language approach,” and then plans to report back to the Rulemaking workgroup at the next meeting in August.
• Comment: The definition of “anthropogenic” will be critical. Response: Yes, the subgroup is discussing this and we may be inclined to not include ground water and hold the criteria to “true anthropogenic.”
• Comment: One key objective is that the underlying arsenic human health criteria be protective, otherwise EPA won’t approve it. We need to acknowledge that naturally occurring levels are higher in many waters in Oregon (and so are associated with a higher level of risk), but that the risk is still at an acceptable level. Also, the revised criterion should be higher than current background concentrations of arsenic in order to allow for mixing where the source of arsenic in the permittee’s discharge is from upstream background concentrations. So with arsenic, we are dealing with several “moving pieces.”
• Clarification: the work ahead for the subgroup is:
o Identify sources that can be addressed using a streamlined administrative process,
o Identify what would “trigger” the requirement for a source to do more to control arsenic,
o Describe what permitted/non-permitted sources are required to do and when, where, how.
• Comment: Focus for this subgroup is likely to be on how to identify known sources with the potential to reduce/control their loading.
• Comment: Thinking that use of the 305(b)/303(d) process might provide an opportunity to help streamline the administration process for addressing arsenic. Response: DEQ has an interest in constructing the process to make the best use of limited agency resources.
NPDES Permit Implementation Approaches
Jennifer Wigal, DEQ, referred the group to a handout that was developed to initiate a brainstorm session regarding implementation that would build on the discussions that had already taken place. She clarified that DEQ hoped the document would serve as a way to help prioritize the issues identified and to pull together principles identified by the FIIAC and the Rulemaking Workgroup process thus far. Wigal reviewed the sections of the document and opened the conversation for group discussion. The bullets below capture the edits, comments, and suggestions put forth the by Rulemaking workgroup members during the meeting:
• Under Principles section:
o #1: suggest changing possible to “attainable”
o Clarification for #2: DEQ means to refer to the desire for broad fixes for widespread problems using the most efficient administrative process possible.
o Suggestion for #3: focus on the corollary that everyone should be responsible for their own contribution.
o Add #5: Legally defensible.
o Add #6: Solutions present long term fixes whenever possible
o Add #7: Solutions are as practical in application as possible; that is, costs are expended in the areas where they provide the most benefit to human heath and conversely, do not impose costs on areas where there is no risk to human health.
o Overall suggestion: avoid the word “significant.”
o Overall suggestion: include language in principles that refers to being open to newer technologies as they are developed in years ahead.
• Under Problem Statement section:
o #2: suggest add “from legacy pollutants being dumped.”
o #3-A: suggest add “the technology does not exist or is unproven”.
o #3-B: suggest adding language that highlights the need to revisit as technologies are developed.
o #3 overall: suggest adding language to reference the policies/goals trying to achieve.
o Clarification for #4: intent is to say “make parameter specific.”
o Suggest add: “the limited databases (i.e. the 303d list) are a factor in developing a reasonable potential analysis and in implementing Water Quality Standards.”
o Question: what happens when monitoring is performed frequently and you “get one hit”?
o #4: not as timely of an issue as #1-3 and #5; see potential for changing listing process and therefore #4 would not be an issue.
o Add #7: Legacy pollutants
• Under Desired Outcomes section:
o Suggest move outcome #5 up to the top of the list.
o #1: suggest remove “at reduced expense” – some methods may cost the same or more, but might have longer lasting benefits.
o #3: suggest clarify that when sources work with DEQ and EPA to collect data, that the data should be made consistent with the existing database.
o #4: suggest separate the two statements.
o #4: suggest add “sources shouldn’t be required to use direct treatment only.”
o #5: suggest change to “where possible, get the broadest set of environmental benefits.”
o #6: suggest clarify what is included and steer clear of legality of mixing zones; make reference to a precautionary approach that is supported by robust, truly relevant background data.
o #7: suggest add “solutions and reporting requirements”
o Add #8: Address overall impacts
• Under Possible Approaches section:
o Suggest using an outline format
o #1: suggest add “if distinct, clarify as such.”
o #3: add “e.g. product bans”
o Add #11: Concentration intake
o Overall suggestion: dynamic permit limits provide a more realistic approach for system management (example: monitoring and managing for temperature and flow) that takes into account environmental and other types of changes and also considers blending.
o Overall suggestion: prioritize the list of approaches.
o Overall suggestion: for those tools that are beyond permitting, tie in ideas developed/discussed by the toxics reduction stakeholder group for the EQC presentation package.
o Overall suggestion: groupings of toxics that present similar problems might be addressed similarly.
o Comment: as we get closer to refining language, EPA permit people will be included in the discussion
Action/Next Steps: DEQ staff thanked the workgroup members for all the suggestions made and planned to provide a revised draft to members by the end of the week of 7/20. DEQ staff will clarify for the group what is new versus what is already authorized. In addition, DEQ will need to identify what procedures can go in an IMD and what needs rule language additions or revisions. Workgroup members are welcome to provide further edits to DEQ staff.
Variances
Melinda McCoy, EPA, referred the group to a handout providing introductory information on variances and how other states have used variances. McCoy said that, while many members of the RWG have a general knowledge/understanding of what variances are, this introduction to variances provides a good opportunity for a “ground up” review of variances so that the RWG members can start discussions pertaining to variances with the same background footing. Melinda reviewed the portions of the handout relating to the: definition for variances; regulatory basis for variances; history of EPA policy/guidance on variances; intent for use of variances; feasibility demonstration for variances; and utilization of variances amongst states. She described the intent of variances from EPA’s standpoint (detailed on page one of the handout) and noted the recent “evolution” in the way variances have been granted and used by various states. McCoy reported that almost half of the states have used variances and noted that, in the handout, she made an effort to categorize patterns in the ways variances have been used. She added that the effective time period for variances have typically been tied either to the triennial review of WQS or to the 5-year permitting cycle. Turn around time on both internal state agency review and review by EPA is typically dependent on the amount of internal coordination and coordination with EPA performed up front, as well as on the consistency of issues arising that lead to the need for a variance. McCoy reported that a coordinated process for reviewing variances can be developed jointly between DEQ and EPA Region 10, and along with other “streamlining” revisions to Oregon’s current variance procedure, can save process time and strengthen the potential for reaching an approved variance. McCoy also said that some states in the Great Lakes have included interim permit conditions, such as use of a “level currently achievable” and pollutant minimization plans, to foster water quality improvement during the variance period, and that there may be ways to incorporate source reduction or trading programs under the umbrella of a variance for achieving such pollutant reductions where traditional treatment is not feasible based upon one of the six factors at 40 CFR 131.10(g). The Rulemaking Workgroup members thanked McCoy for her thorough review and for the handout. The following comments/questions were put for the by the group:
• Question: Regarding the six factors listed on page 2, it seems like the industry focus would be on meeting #6, “would result in substantial and widespread economic and social impact” – is that right? Answer: For some cases, yes (e.g., variance for a municipality in Idaho). Although, other factors such as #1 and #3 have been used by permittees in other states in the past. The justification for factor #6 may be easier to make for municipalities. DEQ acknowledged that for some of the factors, the UAA is the more appropriate permanent solution. Even in these situations, however, a variance is sometimes used to provide the additional time is needed to conduct the UAA. DEQ agrees that the workgroup will need some time to consider how to approach variances and how to present their application to the public.
• Question: Does EPA have any idea what the estimated cost to Idaho was for the variance for the municipality you mentioned? Answer: As the permit issuing authority in Idaho, EPA developed the justification and issued the original variance. We can find out how long the effort to justify/issue the original variance took and report back to the group. Because this was the first variance issued in Idaho, we do know that the process was more intensive at first than anticipated. However, the current effort to renew the variance has gone much more smoothly, given the previous experience.
• Question: How have states addressed the timing between variance expiration and permit renewal? Answer: EPA responded saying that one option might be not to specify a maximum time period for the variance within the general variance authorizing provision itself, but instead, specify the applicable time period for the variance as part of each variance application (wherein this timing issue can be addressed). Or, some states have addressed this issue directly by including language in the general variance authorizing provision which states something like “a WQS variance may remain in effect beyond the term of the NPDES permit if, at least one hundred eighty days prior to the date of expiration of the NPDES permit, the applicant submits to the director an application for renewal of the NPDES permit.”
Action/Next: Workgroup members will review/digest the information presented and review the other handout on variances titled “DEQ’s current thinking on variances” between now and the August meeting, when there will be time for more discussion on the possibility of variances for Oregon.
The next WQS Rulemaking meeting will be: August 6th, from 9 am – 3 pm.
Agenda topics will include Variances, Principles/Outcomes of Implementation Solutions and an Arsenic Provisions discussion.