Sorting out the Law on Water Quality and Toxics

1. Sorting out the Law on Water Quality and Toxics Ryan Sudbury Sudbury Law Office SudburyLawOffice@gmail.com

2. Clean Water Act (CWA) • Resource Conservation and Recovery Act (RCRA) • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) • Safe Drinking Water Act (SDWA) • Toxic Substances Control Act (TSCA) • Federal Insecticide, Fungicide, and Rodenticde Act (FIFRA) • Oil Pollution Act (OPA) Federal Laws Designed to Protect Clean Water

3. The Clean Water Act set a national goal “that the discharge of pollutants into navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a) CWA’s Goal: Eliminate The Discharge of Pollutants

4. Water Dischargers in Oregon

5. “The Water quality standards program is one of the cornerstones of the Clean Water Act.” DEQ 2004/2006 WQ Assessment, Pg. 4. • Regulatory Definition: “WQS are provisions of State or Federal law which consist of a designated use or uses for the waters of the United States, water quality criteria for such waters based upon such uses. Water quality standards are to protect public health or welfare, enhance the quality of the water and serve the purposes of the Act.” 40 CFR § 131.3(i). Water Quality Standards

6. Designated Uses • Can Be Existing or Goal Uses • CWA Requires that WQS Protect the Most Sensitive Use • Criteria to Support Designated/Existing Use • Numeric or Narrative • Antidegradation Policy • Prevent Degradation and Protect and Maintain Existing Uses • General Policies • Addressing implementation issues (e.g., low flows, variances, mixing zones) Elements of Water Quality Standards

7. NPDES Permits • Domestic (POTW) and Industrial Point Sources • Industrial and Municipal Stormwater Permits? • 303(d) Listings of Impaired Waters • TMDL Development • 305(b) Report on Condition of State Waters Changes in WQS Will Affect:

8. 401 Certifications -Dam Relicensing -Dredge and Fill Permits Changes in WQS May Affect:

9. CERCLA and RCRA Cleanups • Applicable or Relevant and Appropriate Requirements (ARARs) • Pretreatment • Programs? Changes in WQS May Affect:

10. Domestic (POTW) and Industrial point sources • MS4 – Maximum Extent Practicable • Industrial and Municipal Stormwater – General Permits • Technology Based Effluent Limitation (TBEL) • Sets the floor for permit limits • Reasonable Potential Analysis – Will pollutants in effluent cause an excursion above numeric water quality criteria in the receiving water? NPDES Point Source Permitting Program

11. If Reasonable Potential to Exceed Water Quality Criteria: • Then, DEQ includes a Water Quality Based Effluent Limitation (WQBEL) in the facility’s permit • Assimilative Capacity Considered • If Yes, Mixing Zone Incorporated • If No = end of pipe standard • Quantitation Limit – If QL is above the standard, QL becomes the compliance limit Reasonable Potential Analysis

12. Oregon Water Quality Criteria • Human Health Criteria • Aquatic Life Criteria - Numeric limits on the amounts of pollutants that can be present in river, lake, or stream water without harm to aquatic life. • Acute and Chronic Exposure Criteria • Other Types of Criteria • Sediment Quality Criteria • Ecological/Biological Community Criteria Water Quality Criteria

13. Non-Cancer • AWQC = Ambient Water Quality Criteria • RfD = Reference dose • RSC = Relative source contribution • BW = Body weight • DI = Drinking water intake rate • FCR = Fish consumption (ingestion) rate • BCF = Bioconcentration factor Calculating the New Human Health Criteria

14. Rulemaking Goal: A Fish Consumption Rate to Match Oregon Fish Consumption 17.5 Grams Per Day is 2 Eight Ounce Fish Meals a Month; or About a Saltine’s Worth a Day

15. U.S. EPA generally recommends that arithmetic mean values be the lowest values considered by States and Tribes when choosing intake rates for use in criteria derivation (USEPA 2000). • ¶ From “Estimated Per Capita Fish Consumption in the United States”, EPA-821-C-02-003, August 2002 (Page 5-43, Section 5.2.1.1., Table 4). • -Reports of zero consumption removed. • -Values for freshwater/estuarine fish consumption only. • † Includes all resident and anadromous fish. Developing Oregon’s New FCR Value

16. Toxics Human Health Criteria Changes • Arsenic, Iron and Manganese Rulemaking • NPDES Implementation Tools • Intake Credits • Background Pollutant Allowance • Variances • Division 41 and 42 Changes • Clarify that forestry and agriculture practices must meet water quality standards. • TMDL Changes • Implementation Ready TMDLs • Air and Land Sources – Identify and assign load allocations to significant air and land sources. Human Health Criteria Rulemaking

17. Current standard is above regularly detected background limits for arsenic, ~1-3 g/L *Water + Fish Ingestion; Freshwater Fish Ingestion Only. • Set at a risk level of 1 x 10-4 • SDWA Maximum Contaminant Level is 10 g/L – Used in Most NPDES Permits • Includes requirement for Arsenic Reduction Plans • Discharges of inorganic arsenic in drinking water protection area must reduce arsenic loading • Applies even if below effluent is below the standard. Arsenic Rulemaking

18. Dec. 9, 2010 the EQC approved eliminating the water + fish ingestion criteria for iron and manganese • Iron and Manganese were not human health issues • Total manganese fish-ingestion-only criteria remains for saltwater. Iron and Manganese Rulemaking

19. “Proposed human health criteria revisions constitute the core of DEQ’s proposed rules.” • Revised Fish Consumption Rate of 175 grams per day; CRITFC 95th Percentile Proposed Human Health Criteria for Toxics

20. Current vs. Proposed CriteriaSelected Examples *Source - Proposed Toxics Table Changes, DEQ 2010 pg. 50-59

21. NPDES Implementation ToolsThinking Inside the Box

22. Accounts for pollutants in intake water • Applies where: • Intake water and receiving water are the same or downstream (Bull Run to Columbia) • No change in chemical or physical properties of the pollutant • No Net Addition of Pollutants • Mass may be added, but equal amount must be removed. • For municipal water sources, intake is where the water enters the system • Fairly limited; meant to be one tool in the box Intake Credits

23. Would allow a 3% increase in pollutant concentration in limited circumstances • No Significant added human health risk finding • No change in mass load (change in concentration allowed) • Receiving water concentration (after mixing) not to exceed a concentration that represents a 1:10,000 risk level for that pollutant • Only applies to carcinogens • Receiving water and intake water = same waterbody • May be limited to less than 3% where technologically or economically feasible alternatives exist Background Pollutant Allowance

24. Hypothetical Scenario Background Pollutant Allowance

25. A multiple discharger variance for non-contact cooling water facilities • Individual variances • General permits Alternative Methods to Address Background Pollutants

26. A variance is a short-term exemption from meeting water quality standards for a specific pollutant • Variances do not otherwise modify the underlying standards • Must be approved by EPA • How short is short-term? • Variances may be issued to address one of six potential scenarios laid out in state and federal regulations. • Substantial and widespread economic and social impact, or • Naturally occurring pollutant loads and human-caused conditions exist that cannot be remedied or would cause more environmental damage to correct than to leave in place. • Pollutant Reduction Plan - In granting a variance, DEQ will determine what additional steps dischargers should take, if any, to reduce pollutants in their effluent. Variances

27. DEQ has committed to complete a draft final Internal Management Directive (IMD) by the time the Rule package is adopted by the EQC. • Case Studies & State-By-State Examples • http://www.deq.state.or.us/wq/standards/docs/toxics/humanhealth/rulemaking/VarianceCompendium110124.pdf Variances

28. Rules clarify that state and private forestry practices must meet WQS • TMDL’s may assign sector or source specific load allocations. • TMDLs may require site specific rule changes to meet LA’s • DEQ may petition Board of Forestry if FPA rules are not adequate to meet LA’s. Division 41 and 42 Changes (Forestry)

29. Agriculture WQMPs and Rules Must Meet WQS • DEQ will provide ODA with comments regarding what’s needed to meet WQS and LAs • TMDL’s may assign sector or source specific load allocations to agricultural and rural residential nonpoint sources. • WQMP and Rules must meet LA’s • DEQ may petition ODA if plans and rules are not adequate to meet LA’s. Division 41 and 42 Changes (Agriculture)

30. Implementation-Ready TMDLs • Strongly Encourage Local Partner Participation & Engagement • TMDLs would include more than information on the sources of impairment and load allocations. • Conduct Finer Scale TMDLs (More Manageable) • Include Specific Timelines and Enforceable Milestones • More Specific Load Allocations – Clarify Goals and Priorities • Load Allocations to Significant Land and Air Sources • May require additional future rulemaking TMDL Changes

31. Erosion & Transportation of Toxics (Sediment) • Possibly dealt with under future Turbidity rule revisions • Broadened Pretreatment Program • Would have brought smaller POTWs into the program • Antidegradation Policy Revisions • Would have applied antidegradation review to nonpoint sources • Phase in of New Standards • Allow revised HHC standards to be phased-in over time Rules Considered but Not Proposed

32. Any Questions?