# 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 Rulem aking 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 Indian s 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 Yakam a Nation Tribal Council The em ail 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 rul em aking 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 O regon 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. **Back ground Information**  **I n 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. Specificall y:  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 qualit y criteria that Oregon adopted.  Prior to taking its action, EPA consulted with the NMFS and FWS as required b y the endangered species ac t. 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 day s 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 day s 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 w ould 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 August2015. 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) “promptl y” propose criteria for aluminum (acute and chronic), copper (acute and chronic) and cadmium (acute onl y) and (2) finalize the crit eria within 90 day s o f proposal.  Historically , EPA hasn’t done well in defending against these typ es of lawsuits, so far we have alway s 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 recentl y there was a stay in the litigation and the attorne ys 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 un der 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 qualit y parameters are required to run th e 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

fr om 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 1 st . 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 amb ient hardness of a water bodyo 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 i s 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 ?**