MEMO TO FILE

FROM: Kathleen Collins, Water Quality Standards Unit

TO: Administrative Record

DATE: December 15, 2015

RE: Conference call for Tribal Technical Contacts regarding EPA’s 

Upcoming Rulemaking for Copper and Cadmium

On November 24, 2015, I sent an email message to the technical contacts for the 

following Tribes:

Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon

Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians

Coquille Indian Tribe

Confederated Tribes of Siletz Indians

Confederated Tribes of Grand Ronde

The Klamath Tribes

Confederated Tribes of Umatilla Indian Reservation

Confederated Tribes of Warm Springs Reservation

Cow Creek Band of Umpqua Tribe of Indians

Nez Perce Tribe of Idaho

Yakama Nation Tribal Council

The email contained a pdf copy of a November 23, 2015 tribal consultation offer 

sent to tribal leaders of the above referenced tribes. The email also highlighted that 

a conference call would be held on December 15th from 9:00 AM to 10:00 AM to 

discuss the rulemaking and answer any questions the technical staff may 

have. The email also encouraged staff to contact me directly if they could not 

make the conference call. 

On December 15, 2015 Ken Clarkson from the Nez Perce Tribe and Mary Lou 

Socia from EPA’s Oregon Operation Office joined the conference call. The 

talking points on the following pages provides the information that I shared with 

Mr. Clarkson.
TALKING POINTS FOR TRIBAL CONSULTATION

Room 19A

866-299-3188

Code: 206-553-1256#

Leader pin: 0756#

December 15, 2015

Tribal consultation offers were mailed out on Nov 23, letting tribal leaders know that 

EPA is planning to propose freshwater acute and chronic copper criteria as well as acute 

cadmium criteria for the state of Oregon by March 31,2016.

I. Background Information

In January of 2013, EPA took a formal action under the CWA to approve, in part, and disapprove, in 

part, Oregon’s 2004 toxics criteria for aquatic life. Specifically:

 EPA approved 38 of the 83 new and revised water quality criteria that Oregon adopted. 

 EPA disapproved 45 of the 83 new and revised water quality criteria that Oregon adopted. 

 Prior to taking its action, EPA consulted with the NMFS and FWS as required by the endangered 

species act. During that process NMFS found that some criteria could jeopardize the continued 

existence of T and E species. 

 Freshwater ammonia - acute and chronic

 Freshwater cadmium - acute

 Freshwater copper - acute and chronic

 Freshwater aluminum - acute and chronic

 The NMFS also provided “reasonable and prudent alternative” that could be taken to address 

their jeopardy decision....so EPA did include ammonia, copper, aluminum and acute cadmium in 

its disapproval action.

When EPA disapproves a state’s criteria, the regulations say that the state has 90 days to remedy the 

disapproval. If the state doesn’t then the regulations say that EPA should “promptly” promulgate 

replacement criteria. Just as an aside, 90 days an extremely time frame and not very realistic. Oregon 

did provide EPA with a plan on how they would address the disapproval actions.

Oregon’s Plan –

 easy first – disapprovals that did not have a jeopardy call associated with them.

 new ammonia criteria ( NMFS found new criteria consistent with their RPA)

 Copper 

 Finally Oregon would adopt cadmium and aluminum criteria – they did not have the 

expertise to derive criteria, and they knew EPA was working on new national recommendations, 

so they decided to wait for EPA to finish its work and then they would adopt the new cadmium 

and aluminum criteria....so that was the plan 

In 2014 – Oregon addressed 38 or the 45 criteria EPA disapproved, and EPA approved Oregon’s 

revisions

In 2015, Oregon adopted revised ammonia criteria consistent with EPA’s 2013 304(a) recommendation. 

Oregon submitted the revised criteria to EPA on January 23, 2015. EPA approved the criteria in August 
2015. NMFS concurred that the ammonia criteria are consistent with the reasonable and prudent 

alternative (RPA) in the opinion.

Oregon’s next rulemaking was for copper (they have been working on this) – and they are planning to 

go to public notice in the summer of 2016 and finalize new criteria in Dec 2016. Unfortunately, 

In April 2015, NWEA filed a complaint in the United States District Court for the District of Oregon, 

seeking an injunction that would compel EPA to: (1) “promptly” propose criteria for aluminum (acute 

and chronic), copper (acute and chronic) and cadmium (acute only) and (2) finalize the criteria within 90 

days of proposal.

 Historically, EPA hasn’t done well in defending against these types of lawsuits, so far we have 

always lost and the judges have given 2 months to propose and 3 months to finalize.

 Rather than go to court, we started settlement discussions with the environmental group in the 

hopes of coming up with mutually agreeable dates. 

 We were in discussion through summer and fall and recently there was a stay in the litigation and 

the attorneys are working out the details of a settlement.

 Cu and Acute Cd Propose by March 31, 2016 Finalize by January 16, 2017

Aluminum Propose by Dec 15, 2017 Finalize by Sept 28, 2018

 Even though the settlement agreement isn’t finalized, we are operating under the assumption that 

these will be the dates 

II. First Proposed Rulemaking – Cd and Cu – March 2016 

 March 31, 2016 - EPA is proposing revised freshwater aquatic life criteria for acute and chronic 

copper and acute cadmium.

 The COPPER criteria will reflect EPA’s most recent national recommendation for copper 

which is the biotic ligand model. This is consistent with the NMFS RPA.

 The Cu BLM is a metal bioavailability model

o 10 site specific ambient water quality parameters are required to run the model (DOC, 

pH, temp, geochemical ions [calcium, magnesium, sodium, potassium, sulfate, chloride 

and alkalinity]).

o The BLM enables development of site specific criteria using site specific ambient 

parameters. 

o In order to use the BLM and come up with an adequately protective criteria, the site 

specific data that is collected must capture the spatial and temporal variability of the site 

to which the criteria will apply. For example, DOC can vary significantly from season to 

season so you need to sample over a long enough time to capture the variability. 

o One of the big challenges with using the BLM is that the data for a site may not be 

available. 

o EPA anticipates releasing a technical support document that will provide default values 

for 8 of the 10 parameters and these default values can be used when site specific data is 

not available.

 The Acute CADMIUM criteria: EPA’s new draft recommendation for freshwater cadmium 

went to public notice on December 1st. We anticipate finalizing our recommendations in March 

and EPA anticipates using the new national recommendation for the acute criterion for Oregon.

o The acute criterion will be a hardness based equation, so in order to develop criteria you 

need to know the ambient hardness of a water body 
o EPA will be recommending a “default” hardness value of 25 mg/L be used when site 

specific hardness data is not available to determine the appropriate hardness value to 

develop a criterion.

o As it turns out, the new criteria is about the same as our old recommendation 

 When NMFS provided its jeopardy opinion, it didn’t know what cadmium criterion should be 

used. So they provided a process that should be used to develop an acute criterion

 EPA has been working on the cadmium RPA and preliminary results show that the RPA process 

results in the same value that EPA’s draft recommendation. 

III. Final Rulemaking Anticipated in early 2017

IV. Questions?