Oregon Department of Environmental Quality

Dec. 11-12, 2013

Oregon Environmental Quality Commission Meeting

Rulemaking Action Item: #XX

Corrections and Clarifications to Toxics Water Quality Standards

DEQ recommends that the Environmental Quality Commission:               

Adopt the proposed PERMANENT rules in Attachment A as part of chapter 340 of the Oregon Administrative Rules.   

Short summary 

DEQ proposes revisions to the water quality standards rules for toxic substances to correct and clarify the standards. Revisions to water quality standards require EPA approval before the revisions become effective for Clean Water Act programs.

The proposed rules:

•  Correct several toxic pollutant criteria that EPA recently disapproved and address other minor revisions to the Toxic Substances rule. EPA disapproved criteria for 11 pesticides based on potentially conflicting information about how the frequency and duration components of these criteria are expressed. DEQ expects that clarifying this aspect of the criteria will lead to EPA approval of 36 pesticide criteria values associated with 11 pesticides.

•  Correct an error in the expression of freshwater selenium criteria.

•  Re-propose freshwater and saltwater arsenic criteria and chromium VI saltwater criteria that were inadvertently left off the criteria table during a 2007 rulemaking.

•  Correct typographical errors made during the 2011 Human Health Toxics Rulemaking.

•  Move all effective aquatic life criteria from Tables 20, 33A and 33B into a new aquatic life criteria table, Table 30, and to refer to the new table in the Toxic Substances rule language. Tables 20, 33A and 33B are no longer needed and would be repealed under this proposal.

•  Delete aluminum from the new Table 30 to reflect EPA’s disapproval of the freshwater criteria for aluminum because the disapproval renders the criteria ineffective and there are no other criteria for aluminum. DEQ anticipates adopting revised freshwater criteria for aluminum in a future rulemaking process.

Not all of these rule revisions will require EPA action in order to become effective under state and federal law, since some of the revisions are non-substantive. DEQ anticipates that EPA will take action on the following water quality standard revisions proposed in this rulemaking before they become effective under the Clean Water Act: (1) revisions to pesticides and selenium criteria; (2) reinstatement of arsenic and chromium VI criteria and the associated conversion factors; (3) deletion of aluminum criteria; and (4) revisions to the Toxic Substances rule in OAR 340-041-0033. EPA will likely take an action on the editorial and formatting changes in this proposal, but not on the associated criteria that were previously approved. EPA will determine which water quality standards it must formally approve or disapprove.

Brief history

On Jan. 31, 2013, EPA took action on Oregon’s aquatic life toxics criteria that the Oregon Environmental Quality Commission adopted and submitted to EPA in 2004. DEQ proposed these water quality criteria, which EPA recommended, to protect aquatic organisms such as fish, shellfish, and aquatic insects. The aquatic life toxics criteria for each pollutant typically have four values: acute (short-term) and chronic (long-term) values for freshwater protection, and acute and chronic values for saltwater protection. EPA approved 38 criteria values associated with 14 toxic pollutants and disapproved 45 criteria values associated with 16 toxic pollutants. EPA disapproved the freshwater acute criterion for cadmium based on findings in the National Marine Fisheries Service’s August 2012 Biological Opinion. EPA disapproved the ammonia criteria because new toxicity data showed that the criteria were not protective of mollusks. EPA also disapproved criteria associated with 14 other pollutants, including 11 pesticides, copper, 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 does not address the disapproval of the freshwater criteria for aluminum, ammonia, copper, and cadmium (acute criterion only). DEQ expects to address the more substantive issues for these pollutants in a future rulemaking.

Regulated parties

Regulated parties possibly affected by this rulemaking include industrial and municipal dischargers to waters of the state. Specifically, regulated parties include those industrial dischargers categorized as “primary dischargers” by the federal permitting regulations and required to monitor for toxic pollutants, and generally major municipal dischargers, those with an average dry weather design flow of more than one million gallons per day. Agricultural and forest activities are subject to Agricultural Water Quality Management Area Plans and Rules and the Forest Practices Act, respectively. Those laws require these nonpoint sources to meet all water quality standards. DEQ does not expect regulated parties to incur direct or indirect fiscal or economic impacts as a result of the proposed revisions to the toxics water quality standards rules.

Statement of need

Request for other options

During the public comment period, DEQ requested public comment on whether to consider other options for achieving the rules’ substantive goals while reducing negative economic impact of the rule on business.

Federal relationship

"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

The proposed rules are not “different from or in addition to federal requirements” and impose stringency equivalent to federal requirements. DEQ has worked with EPA through the development of the proposed rules and we expect that EPA will approve the new and revised rules. Other revisions propose to correct errors or provide additional clarifications to the Toxic Substances Rule.

What alternatives did DEQ consider, if any?

The alternative to not pursuing these proposed amendments is that EPA would be required to put in place its own regulations addressing the deficiencies related to its Jan. 31, 2013, action on Oregon’s aquatic life toxics criteria submitted to EPA in 2004. In addition, the errors from past rulemakings would continue to persist in DEQ rules and complicate implementation of the toxics criteria.

DEQ considered addressing EPA’s disapproval of the aquatic life toxics criteria associated with aluminum, ammonia, cadmium and copper as part of this rulemaking. However, the potential remedies to address EPA’s disapproval are more complex and will involve in-depth conversations with EPA, the National Marine Fisheries Service, interested stakeholders, and DEQ staff. DEQ did not want to delay and potentially confuse these complex issues with the straightforward corrections proposed in this rulemaking.

Rules affected, authorities, supporting documents

Lead division            Program or activity

 Water Quality            Water Quality Standards and Assessment

      Chapter 340 action      

 Recommendation  Division  Rule  Title  SIP/Land use*

 amend  041  0033  Toxic Substances Rule  Land use

 amend  041  0009  Bacteria Rule  Land use

amend  040  0020  Groundwater Quality Protection  Land use

 amend  040  0080  Numerical Groundwater Quality  Land use

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

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

Statutory authority

ORS 468.020, 468B.030, 468B.035 and 468B.048.

Statute implemented    

ORS 468B.030, 468B.035 & 468B.048.  

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

Statement of Cost of Compliance  

Introduction

The revisions proposed in the rulemaking correct typographical errors associated with the aquatic life criteria and human health criteria that EQC adopted in 2004, 2007 and 2011, and are intended to address some of the issues identified by EPA in its Jan. 31, 2013, disapproval action.

The 2004 rulemaking was comprised of a number of actions, including revising toxics criteria for aquatic life and human health. In 2007, DEQ proposed a number of corrections and clarifications, one which included revising Tables 33A and 33B to correctly show which of the toxic pollutants criteria could and could not be used for permitting until EPA approval. The 2011 rulemaking consisted of revising human health criteria based on a higher fish consumption rate, and also included the development of several permitting implementation tools. The corrections to address various errors from these past rulemakings do not result in any fiscal or economic impact.

The remedy for addressing the pesticide criteria disapprovals in the proposed rules only require clearer language in regards to the frequency and duration components of the criteria—not revisions to the associated numeric values. For the selenium disapproval, although the correction to the selenium criteria (i.e. total recoverable form to the dissolved form) does result in slightly more stringent criteria, the expression of most metals to the dissolved form, including selenium, was accounted for as part of the 2004 rulemaking fiscal analysis.

This proposal would also readopt freshwater and saltwater criteria for arsenic and saltwater criteria for chromium VI originally adopted by EQC in 2004. DEQ inadvertently omitted 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 because these criteria, like the selenium criteria revisions, were accounted for as part of the 2004 fiscal analysis. For information on the fiscal and economic impact of revising toxics criteria in 2004, see Attachment F for Agenda Item B, Rule Adoption: Water Quality Standards, including Toxics Criteria May 20-21, 2004 EQC meeting at: http://www.deq.state.or.us/about/eqc/EQCagendasArchive.htm.

DEQ has determined that these clarifications and corrections are straight-forward and will result in minimal fiscal or economic impacts, if any. DEQ expects prompt EPA approval.

DEQ anticipates these changes will provide a benefit to DEQ, the public and to entities subject to toxics water quality criteria by reducing confusion about which criteria are effective and by consolidating all effective aquatic life toxics criteria into one table, rather than in the current three tables. Correcting errors that occurred in 2004, 2007 and 2011 rulemakings will also provide greater clarification to users.

1.  Impacts on 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.

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

DEQ does not expect many 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 small 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.

Some small businesses may need to conduct minor recordkeeping activities to correctly reference the effective aquatic life toxics criteria, generally in discharge monitoring reports, if EQC adopts the proposed rules. DEQ expects the economic impact to be minimal.

Many farms, ranches and small timber operations are small businesses. Agricultural and forest activities are subject to Agricultural Water Quality Management Area Plans and rules and the Forest Practices Act, respectively, which require these nonpoint sources to meet water quality standards. 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. This rulemaking does not change requirements in these plans and rules. Because 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, ranches and small forest land owners.

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

Large businesses that discharge to waterbodies are regulated under the Clean Water Act and are generally 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 measurable direct or indirect fiscal or economic impacts as a result of the proposed revisions to the toxics water quality standards rule. 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.

4. Impact on other government entities other than DEQ

Generally, DEQ does not expect local governments, such as those operating wastewater treatment facilities, to incur measurable direct or indirect fiscal or economic impacts as a result of the proposed revisions. Most, if not all, major wastewater treatment facilities are subject to toxic pollutant monitoring requirements. Generally, minor wastewater treatment facilities, those with an average dry weather design flow of less than one million gallons per day, have much reduced monitoring and permitting requirements than major domestic sources. 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.

5. Impact on DEQ

DEQ does not expect that it 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, this rulemaking does not propose new water quality criteria for protection of aquatic life or human health.

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.

Advisory committee

DEQ established an advisory committee in January 2013 to provide input on any potential fiscal impacts and benefits that may result from this rulemaking. The rulemaking was subsequently delayed and then re-initiated in May 2013. DEQ met with the advisory committee on June 25 and July 11, 2013. The committee included eight members representing industrial, municipal, tribal and environmental organizations with an interest in actions related to developing or revising water quality standards for toxic pollutants. Please see the Advisory Committee Charter for more information.

DEQ sent the draft fiscal analysis to the committee July 2, 2013, to prepare for the fiscal analysis discussion at the July 11, 2013, meeting. 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

DEQ considered the committee’s comments on the fiscal and economic impact statement. The committee agreed that the fiscal and economic impact to the regulated community, including small businesses, was minimal, if any. This rulemaking focuses on addressing EPA disapproval of pesticide and freshwater selenium criteria, and other corrections and clarifications to the toxics rules. The remedy to address the pesticide disapprovals is the addition of clarifying language only. The underlying criteria do not change. To address EPA’s disapproval of the freshwater criteria for selenium, DEQ applied the conversion factors to convert selenium criteria expressed as total recoverable to a dissolved expression as intended in the 2004 rulemaking. The 2004 fiscal analysis included any potential fiscal impacts from the change of total recoverable metals expression to a dissolved expression. This rulemaking does not propose new toxics criteria or other requirements. For more information about the advisory committee discussion, see the meeting minutes.

Documents relied on for fiscal and economic impact

None.

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.

These proposed rules do not involve fees.

Land use

“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.”  

                             OAR340-018-0010

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

DEQ determined that the proposed rules identified under the 'Chapter 340 Action' section above may 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. However, while the water quality standards program in general could affect land uses, the proposed rule amendments do not.

These rule amendments propose to correct or clarify errors associated with past rulemakings, or provide additional clarifications, but the beneficial uses of Oregon’s waters will not be changed and the water quality standards will continue to protect those uses. The proposed changes are adequately covered by the existing statewide goals.

Stakeholder and public involvement

Advisory committee

DEQ met with an advisory committee and considered the committee’s recommendations on the fiscal and economic impact statement. The table below lists the members of the advisory committee.

Roster

EQC prior involvement

DEQ shared information about this rulemaking through a Director's Dialogue at the EQC meeting June 19-20, 2013. EQC members declined to participate in this rulemaking.

Public notice

The Sept. 1, 2013, Oregon Bulletin published the Notice of Proposed Rulemaking with Hearing for this proposed rulemaking. DEQ also:

•  Posted notice on DEQ’s webpage http://www.deq.state.or.us/regulations/proposedrules.htm Aug. 14, 2013.

•  E-mailed notice Aug. 19, 2013, to:

•  3,900 interested parties through GovDelivery

•  Key legislators required under ORS 183.335. Key legislators included:

◦  Senator Jackie Dingfelder, Chair, Senate Committee on Environment and Natural Resources

◦  Representative Jules Bailey, Chair, House Committee on Energy and Environment

•  Members of the advisory committee, including EPA

Public hearings and comment

DEQ held one public hearing in Portland. The comment period closed Sept. 30, 2013, at 5 p.m. DEQ received two public comments that were submitted through DEQ’s online comment form, which allows the public to view all comments submitted online. The summary of comments and DEQ responses section below addresses each public comment.

Presiding Officers’ Record

The presiding officer convened the hearing listed in the table below. There were no attendees and DEQ adjourned the hearing at 6:30 p.m.

 Close of public comment period

The comment period closed Sept. 30, 2013, at 5 p.m.

DEQ received two public comments by the close of the public comment period. Both comments were supportive. DEQ’s response follows each comment.

1  Comment  EPA supports the proposed changes to the rules and indicated that the revisions will address EPA’s disapproval of the aquatic life criteria for 11 pesticides and selenium. EPA did not have any other suggested edits or concerns.

DEQ Response  DEQ acknowledges and appreciates EPA’s support and technical assistance during the development of this rulemaking.

2  Comment  The representative from NW Pulp and Paper Association supports the rule amendments based on their understanding that there are no new substantive water quality criteria changes in the proposal.

DEQ Response  DEQ acknowledges and appreciates NWPPA’s support and participation during the development of this rulemaking.

Comments received by close of public comment period

The table below lists two organizations that submitted comments on the proposed rules. Given the brevity of comments, the original letters are included below.

Comments received after close of public comment period

No comments were received following the close of the public comment period.

Implementation

Notification

If adopted by the commission and subsequently approved by EPA, the proposed rules would become effective April 18, 2014. DEQ would notify:

•  Advisory committee members

•  Interested parties through GovDelivery

▪  Using the water quality standards and human health toxics rulemaking lists used during the public notice period

▪  And the water quality permits list

•  DEQ regional and water quality program staff and clean-up program staff

Systems

•  DEQ will update the rulemaking and toxics Web page with all applicable information such as the revised toxics tables.

Requirement  ORS 183.405

The state Administrative Procedures Act requires DEQ to review new rules within five years of the date the EQC adopts the proposed rules. Though the review will align with any changes to the law in the intervening years, DEQ based its analysis on current law.

Exemption

The following APA exemption from the five-year rule review applies to all of these proposed rule amendments:

Amendments or repeal of a rule. ORS 183.405 (4)