Reacting to criticism from EPA and the Confederated Tribes of the Umatilla Indian Reservation, Oregon has proposed to significantly tighten water quality standards for discharges of a variety of pollutants to state waters. The new standards would reduce permissible discharges of some pollutants, and could dramatically drive up the costs of treatment for point source dischargers, including municipal treatment plants, manufacturers and agricultural processing plants. Oregon developed the new standards – which EPA must still approve – after EPA concluded that the previous standards – set in 2004 – were based on unrealistically low assumptions about human consumption of fish. The new standard for fish consumption is 10 times higher than the previous one, and assumes Oregonians will eat 23 eight-ounce meals of Oregon caught fish per month. That rate of consumption translates into dramatically lower permissible discharge levels for 106 pollutants,[1] including methylmercury, PCBs, dioxins, plasticizers, flame retardants and pesticides, which in turn could dramatically increase treatment costs for municipal sewage treatment, agriculture, and many manufacturing industries, including paper mills at a time when those industries are already struggling.

The Clean Water Act and Oregon Water Quality Standards

Under the Clean Water Act (“CWA”),[2] the Oregon Department of Environmental Quality (“Oregon DEQ”) sets state water quality standards in order to reduce or prevent toxic pollutants from entering Oregon waters and to protect people who use state rivers and streams for fishing, drinking, swimming and other purposes. Water quality standards are laws or regulations that establish (1) the designated use(s) of a waterbody, (2) the water quality criteria that are necessary to protect the use(s), and (3) an antidegradation policy.[3]

Oregon DEQ establishes water quality standards for individual dischargers through National Pollutant Discharge Elimination System (“NPDES”) permits, and develops pollutant loads for “impaired” water bodies by establishing Total Maximum Daily Loads or TMDLs. In addition, DEQ works with land management agencies such as the U.S. Forest Service, the Bureau of Land Management, and the Oregon Department of Transportation, as well as regulatory agencies such as Departments of Forestry and Agriculture to reduce nonpoint source pollution.

CWA Section 301(a)[4] generally prohibits the discharge of a “pollutant” from any “point source” into waterways without an NPDES permit. The CWA defines a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit … from which pollutants are or may be discharged.”[5] NPDES permits are governed under CWA Section 402.[6] NPDES permits require regulated facilities to manage and monitor water quality to ensure that contaminated water is not discharged to wetlands, creeks, rivers, and marine waters.

History of Oregon Fish Consumption Standards

States must periodically review and update their water quality standards to ensure that they protect beneficial uses of water. Oregon DEQ initiated a review of its fish consumption standards in 2006 in response to U.S. EPA’s and many Tribes’ concerns that standards Oregon adopted in 2004 to address toxic pollutants did not adequately consider the amounts of fish people in Oregon, particularly tribal members, eat. Oregon DEQ based the state’s 2004 standards on EPA’s recommended criteria at the time, which used an assumed 17.5 grams per day fish consumption rate, which is approximately the amount of fish that fits on a cracker.

Tribes and EPA both expressed concerns about the protectiveness of criteria based on this value would be inadequate, given the amount of fish that Oregonians consume. While DEQ adopted criteria based on EPA’s national recommendations, EPA also directed states to use local consumption information where available. EPA and tribes both pointed out Pacific Northwest studies documenting the consumption of greater amounts of fish by many populations. Based on these concerns, DEQ agreed to revisit its water quality standards regulation addressing human health criteria for toxic pollutants.

Beginning in 2006, Oregon DEQ worked with EPA, Tribes, interested members of the public, and experts in the public health field on revising Oregon’s standards. DEQ’s first objective was to identify a supportable fish consumption level and then develop regulations that would use that rate to set water quality goals.

In June 2010, EPA disapproved the majority of Oregon DEQ’s human health criteria for toxic pollutants. The agency concluded the fish consumption rate used would be inadequate to protect Oregonians based on the amount of fish and shellfish they are known to consume. EPA’s disapproval caused the majority of the 2004 water quality criteria to be invalidated, leaving in place the previous criteria – adopted in the late 1980’s – which used a 6.5 gram per day fish consumption rate. If Oregon had not revised its water quality standards to address EPA’s disapproval, then EPA would have set the new standards..

Oregon’s New Water Quality Standards

By using a dramatically higher fish consumption rate, Oregon will set stricter water quality criteria for methylmercury, pesticides, and other pollutants found in fish and consumed by people who eat fish caught in Oregon waters. The new rules will affect requirements for sources of toxic pollutants including cities and businesses that discharge wastewater if their discharge contains one or more of the regulated pollutants. For example, Oregon DEQ’s new rules set much more stringent criteria for PCBs (polychlorinated biphenyls), lowering the PCB criterion an order of magnitude from 0.000064 micrograms per liter to 0.0000064 micrograms per liter.[7] The new rules similarly address, among other pollutants, phtalates commonly used in manufacturing plastics, pentachlorophenol used as a wood preservative, and thallium used in manufacturing electronics.[8]

Forest and agricultural land managers, transportation and other construction projects and other parties subject to programs that control point and nonpoint pollution sources could also be affected if their activity results in the release of regulated toxic pollutants into surface waters.

Oregon, like other states, must also develop TMDLs for waterbodies that do not meet applicable water quality standards that have been listed on the state’s list of impaired waters developed under CWA Section 303(d). Nonpoint sources can be a significant source for some pollutants in some waterbodies. In those areas, nonpoint source load reductions may be needed to meet the TMDL loading capacity and the associated new water quality standard. Therefore, Oregon may need to require nonpoint source implementation to meet the TMDL load allocations in order to have reasonable assurance that the TMDL, when fully implemented, would attain the new water quality standards.

Oregon DEQ submitted the proposed standards and implementation procedures to EPA on July 21, 2011. They are not applicable until approved by EPA.[9] DEQ has worked closely with EPA throughout the rulemaking process and anticipates that the proposed standards and implementation procedures meet federal requirements. DEQ expects, therefore, that EPA will approve the new and revised rules.[10]

Implementation

In addition to the proposed criteria revisions, DEQ is proposing new and revised rules addressing the implementation of the revised criteria. Opponents of the new standards argue that more stringent regulations on pollutants increase operating costs for industrial facilities, including municipal wastewater treatment plants and paper mills. To address those concerns, Oregon DEQ has proposed to offer variances to regulated parties that cannot immediately meet the new standards and where some uncertainty exists regarding when or if the requirements could be met. The revised provisions would allow NPDES permitted facilities to seek a short-term exemption from meeting water quality standards-based limits for a specific pollutant(s) and require a pollutant reduction plan to ensure progress toward meeting the water quality standards in the interim. While DEQ envisions the variance development and approval would most efficiently occur during the development and issuance of an NPDES permit, variance development and approval could also be used at any time during the term of the permit.

Under the proposed rules, Oregon’s respective agriculture and forestry departments will be allowed to lead water quality enforcement for violations that arise from nonpoint water pollution sources.[11] DEQ is also proposing a new “intake credit” provision in its NPDES regulation. DEQ would use this provision during the development of a facility’s NPDES permit where DEQ finds that background pollutants in a discharger’s intake water at high levels. As long as the discharger does not increase the mass or concentration of the background pollutants found in its intake water, DEQ would not require the facility to further reduce the pollutants in its discharge. Finally, DEQ is proposing a new “site-specific background pollutant criterion provision” in its water quality standards regulation. This provision complements the proposed intake credit provision, also addressing the presence of high background pollutant concentrations in a discharger’s intake water. DEQ would implement the rule during the development of a facility’s NPDES permit when the facility can’t avoid increasing the pollutant concentration that comes in from their intake water.[12]

For more information about Marten Law’s water quality and wetlands practice please contact Jeff Kray.