Overview

   Statement of need

Proposed Rule or Topic

Discussion

Corrections and Clarifications to Toxics Regulations

1.  340-041-0033(1-5): Toxic Substances Rule

What problem is DEQ trying to solve?

Currently, Oregon’s water quality criteria for the protection of aquatic life reside in three tables: Table 20, Table 33A, and Table 33B. Table 33A has been effective for NPDES permitting. Table 33B criteria were only effective after EPA approval. Table 20 contained criteria effective for all other CWA programs, such as reporting to EPA on the condition of Oregon’s waters (i.e. sections 303(d) and 305(b)). Although there were good justifications for developing the toxics tables in that manner in 2004, it has added to the complexity of determining which criteria are effective for specific water programs over the subsequent years. The EPA is expected to take regulatory action on the aquatic life toxics criteria adopted by the EQC in 2004, thereby determining which new criteria that were adopted in 2004 in Tables 33A and 33B are now effective under CWA authorities. Following EPA action, the criteria that are approved will immediately become effective, while the criteria that are disapproved will immediately revert back to criteria (if exist) last approved by the EPA and found in Table 20. Further, the criteria will apply across all CWA programs. This rulemaking proposes to combine these effective aquatic life criteria into one table: Table 30. Proposed revisions to the toxics rule remove references to Tables 20, 33A, and 33B and instead, refer to Table 30. Other proposed changes are for clarification purposes.

In addition, Table 30 contains proposed changes to either correct anticipated EPA disapproval of certain criteria, or provides additional clarification to footnotes or introductory language to Table 30. These proposed changes do not become effective until after EQC adoption and EPA approval.

There are additional proposed minor clarifications to Table 40 which contains toxics criteria for the protection of human health.

The proposed revisions to the toxics tables and to the rule do not solve the more complex issues of deriving criteria associated with the NMFS’s biological opinion and jeopardy decisions on several freshwater aquatic life toxics criteria (i.e. copper, cadmium, ammonia). A separate rulemaking to address these concerns and others will follow this rulemaking.

How would the proposed rule solve the problem?

Combining the aquatic life toxics criteria into one table will make it easier for DEQ staff, the public, and the regulated community to determine which criteria are effective. These criteria will also apply across CWA programs rather than being program specific. DEQ will still need to post a currently effective aquatic life toxics criteria table that will apply for the time period following EPA action and before EPA approval of rulemaking revisions it identifies as water quality standards.

In addition, DEQ anticipates that the proposed changes to Table 30 will correct the deficiencies identified by EPA in their action letter and allow EPA to promptly approve aquatic life criteria once received from DEQ.

How will DEQ know the problem has been solved?

DEQ will know if the problems described above have been solved based on outcomes, such as; aquatic life toxics criteria will be consistently implemented in CWA programs subject to toxics water quality standards; fewer inquiries to DEQ staff in regards to which aquatic life toxics criteria are effective; and prompt EPA approval of rulemaking revisions it identifies as water quality standards.

2.  340-041-0033(7) Arsenic Reduction Policy Rule

What problem is DEQ trying to solve?

The Arsenic Reduction Policy rule language adopted by the EQC in June 2011 contains several typographical errors. The typos incorrectly reference the Arsenic Reduction Policy as section 4, rather than section 7. This error occurred during preparation of the final rule when the Arsenic Reduction Policy was moved from section 4 in the proposed rule to section 7 in the final toxics rule. DEQ has received several inquiries from the regulated community about these errors.

How would the proposed rule solve the problem?

The proposed rulemaking corrects the typos described above.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

3. 340-041-0009 Bacteria Rule

What problem is DEQ trying to solve?

The Bacteria Rule references Table 20. Since Table 20 will be removed from the Toxic Substances rule, DEQ proposes to delete the reference and instead reference the Toxic Substances rule. DEQ proposes not to insert a specific table name (i.e. Table 30) into the Bacteria Rule to reduce citation corrections in the future if the table name changes again.

How would the proposed rule solve the problem?

The proposed rulemaking corrects the typos described above.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

4. 340-040-0020 Groundwater Quality Protection

What problem is DEQ trying to solve?

Table 20 is referenced in the Groundwater Quality Protection rules. Since Table 20 will be removed from the Toxic Substances rule, DEQ proposes to delete the reference and instead reference the Toxic Substances rule. DEQ proposes not to insert a specific table name (i.e. Table 30) into the Groundwater Quality Rule to reduce citation corrections in the future if the table name changes again.

Additionally, there is a citation to Division 41 which no longer exists. The correct reference should be to the antidegradation policy.

How would the proposed rule solve the problem?

The proposed rulemaking corrects the typos described above.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

5. 340-040-0080 Numerical Groundwater Quality Reference Levels and Guidance Levels

What problem is DEQ trying to solve?

Table 20 is referenced in the Numerical Groundwater Quality Reference Levels and Guidance Levels rules. Since Table 20 will be removed from the Toxic Substances rule, DEQ proposes to delete the reference and instead reference the Toxic Substances rule. DEQ proposes not to insert a specific table name (i.e. Table 30) into this rule to reduce citation corrections in the future if the table name changes again.

How would the proposed rule solve the problem?

The proposed rulemaking corrects the typos described above.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

Corrections and Clarifications to Nonpoint Source Regulations

1. OAR 340-041-0007(5)

What problem is DEQ trying to solve?

Section (5) of the Statewide Narrative Criteria states in large part that logging and forest management activities must not cause violation of water quality standards, and that forest operations conducted in good faith compliance with best management practices and control measures established under the Forest Practice Act are generally deemed not to cause violations of water quality standards as provided in ORS 527.770. The rule notes that forest operations are subject to load allocations established under ORS 468B.110 and OAR Division 340-042 to the extent needed to implement the federal Clean Water Act. This provision is similar in form and substance to other nonpoint source provisions successfully challenged in NWEA v. EPA (U.S. District Court, 2012). If this provision is not repealed, the court’s decision would require EPA to review this provision as a water quality standard.  After discussions with EPA and major stakeholders, DEQ believes removal of this provision from Division 41 is preferable.  Accordingly, DEQ has agreed to commence rulemaking and recommend removal of this provision to the EQC. DEQ does not believe that the provision creates authority or obligations not already required by state and federal law. Further, this provision duplicates and may cause confusion regarding the statutory requirements contained in the Oregon Forest Practices Act.  

How would the proposed rule solve the problem?

The proposed rulemaking eliminates the need for EPA to review this provision as a water quality standard and eliminates the potential confusion where present.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

2. 340-041-0028(12) Implementation of the Temperature Criteria

What problem is DEQ trying to solve?

Subsections (e) and (f) of OAR 340-041-0028(12) provide that forestry and agriculture operations on state and private lands are deemed to be in compliance with water quality criteria for temperature if they are in compliance with Forest Practices Act and Agricultural Water Quality Management Act requirements. The provision also states DEQ will work with the Oregon Departments of Forestry and Agriculture to revise their programs in order to attain water quality standards. Subsection (g) includes similar provisions for agriculture and forestry on federal lands, except implementation of water quality restoration plans, best management practices and aquatic conservation strategies by federal Designated Management Agencies are deemed in compliance with the water quality standard for temperature. OAR 340-041-0028(12)(h)(D) states that a nonpoint source complying with an approved temperature management plan is deemed in compliance with the water quality criteria for temperature.

These provisions were successfully challenged in the U.S. District Court (NWEA v. EPA).  If these provisions are not repealed, the court’s decision would require EPA to review these provisions as water quality standards.  After discussions with EPA and major stakeholders, DEQ believes removal of these provisions from Division 41 is preferable.  Accordingly, DEQ has agreed to commence rulemaking and recommend removal of the provisions to the EQC.  DEQ does not believe these provisions create additional authority or obligations not already provided by state or federal law.  Further, these provisions duplicate and may cause confusion regarding the statutory requirements contained in the Oregon Forest Practices Act and the Agriculture Water Quality Management Act. 

How would the proposed rule solve the problem?

The proposed rulemaking eliminates the need for EPA to review these provisions as water quality standards and eliminates the potential confusion where present.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

3. 340-041-0061 Other Implementation of Water Quality Criteria

What problem is DEQ trying to solve?

Subsections (10), (11) and (12) of OAR 340-041-0061 are nearly identical to OAR 340-041-0028(12)(e), (f) and (g) discussed above. The primary difference is that the rules discussed above apply specifically to temperature criteria, where as the provision in -0061 apply to all other water quality standards.

These provisions were successfully challenged in the U.S. District Court (NWEA v. EPA).  If these provisions are not repealed, the court’s decision would require EPA to review these provisions as water quality standards.  After discussions with EPA and major stakeholders, DEQ believes removal of these provisions from Division 41 is preferable.  Accordingly, DEQ has agreed to commence rulemaking and recommend removal of the provisions to the EQC.  DEQ does not believe that these provisions create additional authority or obligations not already provided in state and federal law. Further, these provisions duplicate and may cause confusion regarding the statutory requirements contained in the Oregon Forest Practices Act, and the Agriculture Water Quality Management Act. 

How would the proposed rule solve the problem?

The proposed rulemaking eliminates the need for EPA to review these provisions as water quality standards and eliminates the potential confusion where present.

How will DEQ know the problem has been solved?

The problem will be solved once the revised rule is adopted by the EQC and filed with the Secretary of State.

   Statement of fiscal and economic impact      ORS 183.335 (2)(b)(E)

a) Estimated number of small businesses and types of businesses and industries with small businesses subject to proposed rule.

Corrections and Clarifications to Toxics Regulations

As part of its recordkeeping, DEQ does not track whether any of the entities subject to the proposed rule revisions are small businesses, therefore it is difficult to estimate businesses potentially affected. The types of small businesses/industries holding wastewater permits include, but are not limited to: food processors, smelting/refining operations, timber processing, wood products manufacturing, pulp and paper, retail operations, seafood processors, seasonal fresh pack operations, and petroleum hydrocarbon clean-up operations.

According to the Oregon Farm Bureau, 97% (update if needed—this stat was from the human health toxics rulemaking) of Oregon farms and ranches fall under the category of small businesses based on the definition of small businesses being fifty or fewer employees. Other types of businesses that could be subject to this rulemaking include nurseries, dairy and beef producers, fruit growers, and other food producers, industrial, and small forest land owners.

b) Projected reporting, recordkeeping and other administrative activities, including costs of professional services, required for small businesses to comply with the proposed rule.

No additional activities are required for compliance with the proposed revisions.

c) Projected equipment, supplies, labor and increased administration required for small businesses to comply with the proposed rule.

No additional resources are required for compliance with the proposed rules.

d) Describe how DEQ involved small businesses in developing this proposed rule.

Corrections and Clarifications to Toxics Regulations

DEQ included the Association of Oregon Industries (AOI) as part of the fiscal advisory committee that advised DEQ on the cost of compliance for this rulemaking for small businesses. AOI’s membership is comprised of large and small companies from all business classifications in Oregon. In addition, the Oregon Farm Bureau was also part of the fiscal advisory committee and represents many farms and ranches that are considered small businesses.

DEQ discussed the fiscal impact form and solicited input from these members during one workgroup meeting on January 24, 2013. This input [will be] incorporated into DEQ’s analysis.

Corrections and Clarifications to Nonpoint Source Regulations

DEQ included the Oregon Farm Bureau, Association of Small Woodland Owners, Oregon Cattlemen’s Association, as well as state and federal agencies that work with small farms and ranches as part of the fiscal advisory committee that advised DEQ on the cost of compliance for this rulemaking for small businesses.

DEQ discussed the fiscal impact form and solicited input from these members during one workgroup meeting on January 24, 2013. This input [will be] incorporated into DEQ’s analysis.