Oregon Department of Environmental Quality

SEPTEMBER 1, 2013

Notice of Proposed Rulemaking

 Corrections and Clarifications to Toxics Water Quality Standards Rulemaking

Short summary 

[ENTER A SHORT HIGHLEVEL SUMMARY OF THE PROPOSED RULES. THE PURPOSE IS TO HELP THE READER PICK UP THE GIST OF OUR PROPOSAL IN A SHORT PERIOD OF TIME.]

The Corrections and Clarifications to Toxics Water Quality Standards Rulemaking proposes revisions to the toxics water quality standards rules.  These revisions are generally not substantive, but are intended to correct several toxic pollutant criteria EPA recently disapproved, as well as address other minor revisions to the Toxic Substances rule. For example, EPA disapproved criteria for 11 pesticides based on an unclear reading of the frequency and duration components of these criteria. DEQ expects that clarifying this aspect of the criteria will remedy the disapproval of 35 pesticide criteria values associated with 11 pesticides. DEQ also proposes to correct an error in the expression of freshwater selenium criteria (i.e. currently expressed as “total recoverable selenium” and is proposed to be expressed as “dissolved selenium”); is re-proposing freshwater and saltwater arsenic criteria and chromium VI saltwater criteria that were inadvertently left off during a 2007 rulemaking; and is correcting typographical errors associated with the Human Health Toxics Rulemaking that occurred in 2011. In addition, proposed changes to the Toxic Substances rule reflect the movement of the effective aquatic life criteria from Tables 20, 33A, and 33B into a new aquatic life criteria table, Table 30. As a result of this movement, Tables 20, 33A, and 33B are no longer needed and are proposed to be deleted. DEQ proposes to delete aluminum from Table 30 to reflect EPA’s disapproval of the freshwater criteria for aluminum (EPA’s disapproval renders the criteria ineffective and there are no saltwater criteria for aluminum) and there are no criteria in Table 20 that were last approved by EPA.

Brief history

On Jan. 31, 2013, the EPA took action on Oregon’s aquatic life toxics criteria adopted by the Oregon Environmental Quality Commission and submitted to EPA in 2004. DEQ developed these water quality criteria to protect aquatic organisms such as fish, shellfish, and aquatic insects. EPA approved 38 criteria values associated with 14 toxic pollutants. EPA disapproved freshwater criteria associated with three pollutants—ammonia, cadmium and copper—based on findings in the National Marine Fisheries Service’s (NMFS) August 2012 Biological Opinion. EPA also disapproved criteria associated with 13 other pollutants (11 pesticides, selenium and aluminum) due to inconsistencies associated with EPA’s nationally recommended criteria. The Clean Water Act requires Oregon to fix the deficiencies identified in EPA’s disapproval action. If Oregon does not make these revisions, EPA is required to put in place its own regulations addressing the deficiencies. This rulemaking will not include remedies to address the disapproval of the freshwater criteria for aluminum, ammonia, copper, and cadmium (acute only). DEQ expects to conduct a separate, subsequent rulemaking(s) to address these pollutants. DEQ is separating this rulemakings to help ensure that the straight-forward corrections as proposed in this rule are completed in a timely manner, and are not unnecessarily delayed by the more substantive issues DEQ anticipates arising from the other disapproved criteria.

Regulated parties

Regulated parties include industrial and municipal dischargers to waters of the state. Specifically, regulated parties include those industrial dischargers that are categorized as “primary dischargers” by the federal permitting regulations and required to monitor for toxic pollutants, and generally major municipal dischargers (average dry weather design flow of more than one million gallons per day (MGD)).

Agricultural and forest activities are subject to Agricultural Water Quality Management (AgWQM) Area Plans and Rules and the Forest Practices Act, which respectively, prohibit pollution (e.g. toxics affecting aquatic life and human health) to waters of the state.

Request for other options

During the public comment period, DEQ [will] request public comment on whether to consider other options for achieving the rule's substantive goals while reducing negative economic impact of the rule on business.

Information in this section originates with the Considerations worksheet. Delete this section if the team decides it does not want to use it.

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The rule design team may adapt the main and subsection titles to the rulemaking. If the other sections adequately address the situation, delete this section.

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Federal relationship (to be completed)

For proposals that address numerous issues, the rule design team may use one of the methods under the Statement of Need section if it clarifies how this section applies to the disparate elements of this rulemaking. Delete this box after the team has settled on a method.

"It is the policy of this state that agencies shall seek to retain and promote the unique identity of Oregon by considering local conditions when an agency adopts policies and rules. However, since there are many federal laws and regulations that apply to activities that are also regulated by the state, it is also the policy of this state that agencies attempt to adopt rules that correspond with equivalent federal laws and rules..."

Relationship to federal requirements

[OPTION 1 – verbatim or by reference]

The proposed rule adopts the federal requirement Choose an item.. [ENTER THE NAME OF THE REQUIREMENT, ITS CITATION AND A BRIEF DESCRIPTION.] Enter text here.

[OPTION 2– in addition to federal requirements]

DEQ determined this rule proposal is “in addition to federal requirements” as required under ORS 468A.327(1)(a) and OAR 340-011-0029(1)(a).

[EXPAND ON HOW AND WHY THE PROPOSED RULES ARE DIFFERENT FROM THE FEDERAL REQUIREMENTS.] [EXAMPLES: address science applicable to Oregon, incorporate technological advances, protect public health, protect environment, address administrative issues or address economic concerns] Enter text here

What alternatives did DEQ consider, if any?

[DESCRIBE WHY DEQ DID NOT PURSUE THESE ALTERNATIVES] Enter text here

Lead division            Program or activity

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?       Chapter 340 action      

 Recommendation  Division  Rule  Title  SIP/Land use*

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*  SIP – This rule is part of the State Implementation Plan.

*  Land use – DEQ State Agency Coordination Program considers this rule, program or activity is a land use program.

Statutory authority

ORS 468.020, 468.065, [ENTER CITATIONS] Enter here

Other authority}

 ORS [ENTER CITATIONS] Enter here

Statute implemented  Legislation  Year

ORS  [ENTER CITATIONS] Enter here  [ENTER BILL #] Enter here  yyyy

Documents relied on for rulemaking  ORS 183.335(2)(b)(C)

[BRIEFLY DESCRIBE THE PRINCIPAL DOCUMENTS, REPORTS OR STUDIES RELIED ON TO DEVELOP THIS PROPOSAL. INCLUDE THE LOCATION WHERE THE DOCUMENTS ARE AVAILABLE FOR PUBLIC INSPECTION. THE LIST MAY BE ABBREVIATED IF THE TEAM IDENTIFIES THE LOCATION OF THE COMPLETE LIST.]

Statement of Cost of Compliance  

1.  Impacts on general public

[CONSIDER BOTH POSITIVE AND NEGATIVE IN A BRIEF DESCRIPTION OF THE PROJECTED FISCAL AND ECONOMIC IMPACTS AND COSTS OF COMPLIANCE ON THE GENERAL PUBLIC.]

DEQ does not expect that the general public will incur direct or indirect fiscal or economic impacts as a result of the proposed revisions to the Toxics Water Quality Standards rules. The general public is not directly regulated under the Clean Water Act. The revisions proposed in this rulemaking correct typographical errors associated with the aquatic life criteria and human health criteria adopted by the EQC in 2004 and 2011, respectively, and responds to the regulatory consequences of EPA’s approval and disapproval actions associated with the 2004 aquatic life criteria.

DEQ anticipates the changes to the toxics rule will very likely provide a benefit to members of the public by clarifying which criteria are effective and combining effective aquatic life toxics criteria into one table (i.e. Table 30), rather than distributed among three tables (i.e. Table 20, Table 33A, and Table 33B).

2.  Cost of compliance on small businesses (those with 50 or fewer employees). ORS 183.336

[CONSIDER BOTH POSITIVE AND NEGATIVE IN A BRIEF DESCRIPTION OF THE PROJECTED FISCAL AND ECONOMIC IMPACTS AND COSTS OF COMPLIANCE ON SMALL BUSINESSES. IT IS OK TO REFERENCE 1. ABOVE IF THE TEXT WOULD BE IDENTICAL. ]

DEQ does not expect small businesses to be affected by these rule revisions. Few small businesses are directly subject to toxics water quality criteria because most small businesses do not directly discharge wastewater to a waterbody. For those businesses that do discharge to a waterbody and have toxics monitoring requirements (i.e. identified as “primary industries” by federal permitting regulations), or are subject to pretreatment requirements where the business discharges to a municipal wastewater facility, the proposed changes in this rulemaking do not impose new requirements associated with the water quality toxics criteria. DEQ conducted an economic and fiscal impact assessment on revising or proposing new aquatic life criteria as part of the 2004 rulemaking. Instead, the revisions proposed as part of this rulemaking provide corrections and clarifications to toxics regulations and tables and responds to the regulatory consequences of EPA disapproval and approval of aquatic life criteria submitted in 2004.

DEQ is proposing to re-adopt freshwater and saltwater criteria for arsenic and saltwater criteria for Chromium VI originally adopted by the EQC in 2004. DEQ inadvertently left off these criteria in Table 33B during the 2007 water quality standards rulemaking. Despite this omission, these re-proposed criteria are not considered new water quality criteria for the protection of aquatic life and do not need to undergo an economic analysis. In addition, although the correction to the selenium criteria (i.e. expressed in the dissolved form) does result in slightly lower criteria, the expression of most metals to the dissolved form, including selenium, was accounted for as part of the 2004 rulemaking fiscal analysis.

However, some small businesses may need to conduct minor recordkeeping activities to correctly reference the effective aquatic life toxics criteria following this rulemaking. DEQ expects the economic impact to be minimal.

DEQ anticipates these changes will very likely provide a benefit to small businesses subject to toxics water quality criteria by clarifying which criteria are effective and combining effective aquatic life toxics criteria into one table (i.e. Table 30), rather than distributed among three tables (i.e. Table 20, Table 33A, and Table 33B).

Many farms, ranches, and small timber operations fall under the category of small businesses. Agricultural and forest activities are subject to Agricultural Water Quality Management (AgWQM) Area Plans and Rules and the Forest Practices Act, which respectively, prohibit pollution (e.g. toxics affecting aquatic life and human health) to waters of the state. Because these plans and rules already require and provide the mechanism for agriculture and small forest land owners to meet water quality standards and TMDL load allocations, and moreover, this rulemaking only proposes clarifications and corrections to toxics regulations and tables, DEQ does not anticipate that this proposed rulemaking will have direct or indirect fiscal impacts or effects on small farms and ranches.

3. Impact on large businesses (all businesses that are not small businesses under #2 above)

[CONSIDER BOTH POSITIVE AND NEGATIVE IN A BRIEF DESCRIPTION OF PROJECTED FISCAL AND ECONOMIC IMPACTS AND COSTS OF COMPLIANCE ON LARGE BUSINESSES. IT IS OK TO REFERENCE #1 OR #2 ABOVE IF THE TEXT WOULD BE IDENTICAL. ]

Large businesses that discharge to waterbodies are regulated under the Clean Water Act and are subject to toxics monitoring requirements. However, DEQ does not expect large businesses, such as pulp and paper or electronic processing types of industry, to incur significant direct or indirect fiscal or economic impacts as a result of the proposed revisions to the toxics rule. This rulemaking does not propose new water quality criteria for protection of aquatic life or human health. Instead, this rulemaking proposes to correct typographical errors associated with the aquatic life and human health criteria adopted by the EQC in 2004 and 2011, respectively, and responds to the regulatory consequences of EPA’s approval and disapproval actions associated with the 2004 aquatic life criteria. DEQ conducted an economic and fiscal impact assessment on revising or proposing new aquatic life criteria as part of the 2004 rulemaking.

DEQ is proposing to re-adopt freshwater and saltwater criteria for arsenic and saltwater criteria for Chromium VI originally adopted by the EQC in 2004. DEQ inadvertently left off these criteria in Table 33B during the 2007 water quality standards rulemaking. Despite this omission, these re-proposed criteria are not considered new water quality criteria for the protection of aquatic life and do not warrant undergoing an economic analysis. In addition, although the correction to the selenium criteria (i.e. expressed in the dissolved form) does result in slightly lower criteria, the expression of most metals to the dissolved form, including selenium, was accounted for as part of the 2004 rulemaking fiscal analysis.

Some large businesses may need to conduct minor recordkeeping activities to correctly reference the effective toxics criteria following this rulemaking. DEQ expects the economic impact to be minimal.

DEQ anticipates these changes will very likely provide a benefit to large businesses subject to requirements based on toxics criteria by clarifying which criteria are effective and combining effective aquatic life toxics criteria into one table (i.e. Table 30), rather than distributed among three tables (i.e. Table 20, Table 33A, and Table 33B).

4. Impact on local government other than DEQ

[CONSIDER BOTH POSITIVE AND NEGATIVE IN A BRIEF DESCRIPTION OF THE PROJECTED FISCAL AND ECONOMIC IMPACTS AND COSTS OF COMPLIANCE ON STATE AGENCIES. IT IS OK TO REFERENCE #1, 2 OR 3 ABOVE IF THE TEXT WOULD BE IDENTICAL.]

DEQ does not expect local governments, such as municipal wastewater treatment facilities (i.e. domestic facilities or Publicly Owned Treatment Works), to incur significant direct or indirect fiscal or economic impacts as a result of the proposed revisions to the toxics rule. This rulemaking does not propose new water quality criteria for protection of aquatic life or human health. Instead, this rulemaking proposes to correct typographical errors associated with the aquatic life and human health criteria adopted by the EQC in 2004 and 2011, respectively, and responds to the regulatory consequences of EPA’s approval and disapproval actions associated with the 2004 aquatic life criteria.

Most, if not all, major domestic sources are subject to toxic pollutant monitoring requirements. Generally, minor domestic sources (average dry weather design flow of less than one million gallons per day (MGD)) have much reduced monitoring and permitting requirements than major domestic sources.

The re-adoption of arsenic and chromium VI criteria and the expression of the freshwater selenium criteria to dissolved, as noted above under impacts to large businesses, does not require an economic analysis. DEQ conducted an economic and fiscal impact assessment on revising or proposing new aquatic life criteria as part of the 2004 rulemaking.

Some wastewater treatment facilities may need to conduct minor recordkeeping activities to correctly reference the effective toxics criteria following this rulemaking. DEQ expects the economic impact to be minimal.

DEQ anticipates these changes will very likely provide a benefit to local governments subject to toxics criteria by clarifying which criteria are effective and combining effective aquatic life toxics criteria into one table (i.e. Table 30), rather than distributed among three tables (i.e. Table 20, Table 33A, and Table 33B).

5. Impact on DEQ

[CONSIDER BOTH POSITIVE AND NEGATIVE IN A BRIEF DESCRIPTION OF THE PROJECTED FISCAL AND ECONOMIC IMPACTS AND COSTS OF COMPLIANCE ON DEQ. IT IS OK TO REFERENCE 1, 2, 3 or 4 ABOVE IF THE TEXT WOULD BE IDENTICAL.]

DEQ does not expect that DEQ staff will incur significant direct or indirect fiscal or economic impacts as a result of the proposed revisions to the toxics rule. Although many DEQ programs use water quality criteria for toxics in various water quality programs (e.g. water quality assessment, Total Maximum Daily Load program, NPDES permitting, groundwater rules, clean-up program, etc.), this rulemaking does not propose new water quality criteria for protection of aquatic life or human health. DEQ conducted an economic and fiscal impact assessment on revising or proposing new aquatic life criteria as part of the 2004 rulemaking. Instead, this rulemaking proposes to correct typographical errors associated with the aquatic life and human health criteria adopted by the EQC in 2004 and 2011, respectively, and responds to the regulatory consequences of EPA’s approval and disapproval actions associated with the 2004 aquatic life criteria. However, some DEQ programs may need to conduct minor recordkeeping activities

to correctly reference effective toxics criteria following this rulemaking. DEQ expects the economic impact to be minimal.

DEQ anticipates these changes will very likely provide a benefit to DEQ staff by clarifying which criteria are effective and combining effective toxics aquatic life criteria into one table (i.e. Table 30), rather than distributed among three tables (i.e. Table 20, Table 33A, and Table 33B).

Documents relied on for fiscal and economic impact

None

Advisory committee (need to do)

[THE PURPOSE OF THE ADVISORY COMMITTEE INFORMATION IS IN THIS LOCATION IS TO PRESENT A COMPLETE PICTURE OF OUR PUBLIC INVOLVEMENT. MAKE SECTIONS ARE NOT EXACT, MAKE SURE THEY DO NOT CAUSE AMBIGUITY.]

DEQ appointed an advisory committee and considered the committee’s recommendations on this fiscal and economic impact statement. In compliance with ORS 183.333, DEQ asked for the committee’s recommendations on:

•  Whether the proposed rules would have a fiscal impact,

•  The extent of the impact, and

•  Whether the proposed rules would have a significant impact on small businesses and compliance with ORS 183.540.

[ADD ANY SPECIFICS ABOUT THE COMMITTEE’S INVOLVEMENT WITH THE FISCAL AND ECONOMIC IMPACT STATEMENT]

To be added after meeting with the committee on July 11.

[OPTION 2]

DEQ convened the Enter committee name here advisory committee on Enter date using style guide format – mmm dd, yyyy, EXAMPLE: Jan. 14, 2013. Describe committee charter here

The ##-member committee included representatives from Generally describe committee makeup here. The committee met ## times over ## months. In additional to the recommendations described under the Statement of Fiscal and Economic Impact section above, the committee Summarize involvement and link to any formalized recommendation here.

 Roster

The committee recommended that [SUMMARIZE RECOMMENDATION OR INVOLVEMENT AND LINK TO ANY FORMAL RECOMMENDATION.] The committee reviewed the fiscal impact statement, specifically impact on small businesses.

Housing cost

To comply with ORS 183.534, DEQ determined the proposed rules would have no effect on the development cost of a 6,000-square-foot parcel and construction of a 1,200-square-foot detached single-family dwelling on that parcel. [EXAMPLE OF QUALIFIER] The proposed fee affects only manufacturers of electronic devices sold in or into Oregon.

Fees

Not applicable.

For proposals that address numerous issues, the rule design team may use one of the methods under the Statement of Need section if it clarifies how this section applies to the disparate elements of this rulemaking. Delete this box after the team has settled on a method.

“It is the Commission's policy to coordinate the Department's programs, rules and actions that affect land use with local acknowledged plans to the fullest degree possible.”  

                              ORS 197.180, OAR 660-030

Land-use considerations

To determine whether the proposed rules involve programs or actions that are considered a land-use action, DEQ considered:

▪  Statewide planning goals for specific references. Section III, subsection 2 of the DEQ State Agency Coordination Program} document identifies the following statewide goal relating to DEQ's authority:

 Goal  Title

 5    Open Spaces, Scenic and Historic Areas, and Natural Resources

 6    Air, Water and Land Resources Quality

 11    Public Facilities and Services

 16    Estuarial resources

 19    Ocean Resources

▪  OAR 340-018-0030 for EQC rules on land-use coordination. Division 18 requires DEQ to determine whether proposed rules will significantly affect land use. If yes, how will DEQ:

◦  Comply with statewide land-use goals, and

◦  Ensure compatibility with acknowledged comprehensive plans, which DEQ most commonly achieves by requiring a Land Use Compatibility Statement.

▪  DEQ’s mandate to protect public health and safety and the environment.

▪  Whether DEQ is the primary authority that is responsible for land-use programs or actions in the proposed rules.

▪  Present or future land uses identified in acknowledged comprehensive plans.

Determination

[APPLIES TO THE PROPOSED RULES THAT DO NOT AFFECT LAND-USE PROGRAMS OR ACTIONS. ADJUST TO FIT SITUATION.]

DEQ determined that the proposed rules identified under the 'Chapter 340 Action' section above do not affect existing rules, programs or activities that are considered land-use programs and actions in OAR 340-018-0030 or in the DEQ State Agency Coordination Program.

[APPLIES TO THOSE PROPOSED RULES THAT AFFECT LAND-USE PROGRAMS OR ACTIONS. ADJUST TO FIT SITUATION.]

DEQ determined that the proposed rules identified under the ‘Rules affected, authorities, supporting documents’ section above affect [IDENTIFY EXISTING PROGRAM, RULE OR ACTIVITY], which is an existing rule, program or activity that is considered a land-use program in the DEQ State Agency Coordination Program.

[OPTION 1]DEQ’s statewide goal compliance and local plan compatibility procedures adequately cover the proposed rules. [DESCRIBE BRIEFLY WHY IT IS ADEQUATE.] [EXAMPLE 1: 340-018-0040(1) - compliance with statewide planning goals achieved by ensuring compatibility with acknowledged comprehensive plans] [EXAMPLE 2: 340-018-0050(2)(a) - ensuring compatibility with acknowledged comprehensive plans may be accomplished through a Land Use Compatibility Statement.] Enter text here.

[OPTION 2]DEQ’s statewide goal compliance and local plan compatibility procedures do not cover the proposed rules. [DESCRIBE CRITERIA AND RATIONALE USED TO DETERMINE THE PROPOSED RULES ARE LAND-USE RULES.] Enter text here.

[POTENTIAL TEXT] DEQ reasonably expects the program, rules or actions to have Choose an item. effect on resources, objectives or areas in the planning goals. [PLEASE EXPLAIN] Enter text here.

[OPTION 3]The proposed rules are not subject to existing compliance and local plan compatibility procedures. To ensure compliance and compatibility, DEQ will [EXPLAIN NEW PROCEDURES DEQ WILL USE TO ENSURE COMPLIANCE AND COMPATIBILITY] Enter text here.

 Advisory committee

DEQ convened the [ENTER ADVISORY COMMITTTEE NAME] advisory committee on [DATE]. [DESCRIBE COMMITTEE CHARTER] Enter text here.

The ##-member committee included representatives from [GENERALLY DESCRIBE COMMITTEE MAKEUP.] The committee met ## times over ## months. The committee recommended that [SUMMARIZE RECOMMENDATION OR INVOLVEMENT AND LINK TO ANY FORMAL RECOMMENDATION.] The committee reviewed the fiscal impact statement, specifically impact on small businesses.

 EQC prior involvement

DEQ shared information about this rulemaking with the EQC at a facilitated hearing on mmm dd, yyyy, through an information item on the mmm dd, yyyy EQC agenda, and in the Director's Dialog mmm dd, yyyy.

Public notice

[ADAPT TENSE. USE “PLANS” FOR FUTURE TENSE.] The Notice of Proposed Rulemaking with Hearing [WITHOUT HEARING] for this proposed rulemaking will publish in the mmm dd, yyyy Oregon Bulletin. DEQ also:

•  Posted notice on DEQ’s webpage http://www.deq.state.or.us/regulations/proposedrules.htm on mmm dd, yyyy.

•  E-mailed notice to:

•   #### interested parties through GovDelivery on mmm dd, yyyy.

•  #### stakeholders on the [LIST OTHER MAILING LIST].

•  ## key legislators required under ORS 183.335 on mmm dd, yyyy. Key legislators included:

◦  Name, Title, Committee

◦  Name, Title, Committee

◦  Name, Title, Committee

•  Members of the advisory committee on mmm dd, yyyy.

•  Mailed the notice by U.S. Postal Service to ## interested parties on mmm dd, yyyy.

•  Sent notice to EPA on mmm dd, yyyy. 

•  Other

Public hearings

DEQ plans to hold one [ENTER NUMBER OF HEARINGS] public hearing. [OPTION]The hearing is accessible by:

Conference call:  (###) ###-####

Webinar:       (###) ###-####  Participant code: #####

Before taking public comment, DEQ will describe the rule proposal. The following table lists public hearing locations and participation:

Close of public comment period

The comment period will close on mmm dd, yyyy at ##:## p.m.

Jennifer Wigal, 2013-07-01T14:19:00Z
Seems like this paragraph should read how we want it to read when the proposed rule is published. At that point in time, we will actively be proposing these changes and they are no longer speculative.

Jennifer Wigal, 2013-07-01T14:43:00Z
What’s the revision?

Jennifer Wigal, 2013-07-01T14:44:00Z
Shouldn’t this be written as we want it to read during the public comment period?

Jennifer Wigal, 2013-07-01T14:46:00Z
Please check for consistent naming

Jennifer Wigal, 2013-07-01T14:56:00Z
Consistent naming

Jennifer Wigal, 2013-07-01T14:57:00Z
Need to repeat all this? Would seem like could state it once and not need it here and could just jump in with next paragraph.

Jennifer Wigal, 2013-07-01T14:58:00Z
Ditto above.