UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140

OFFCE OF WATER AND WATERSHEDS 

### OCT 17 2011

Mr. Neil Mullime, Administrator Water Quality Division Department ofEnvironmental Quality 811 SW Sixth Avenue Portland, Oregon 97204-1390 Re: EPA's Approval ofNew and Revised Human Health Water Quality Criteria for Toxics and Implementation Provisions in Oregon's Water Quality Standards SubmittedonJuly 12 and 21, 2011 DearMr. Mullane: The U.S. Environmental Protection Agency (EPA) has completed its Clean Water Act (CWA) review ofOregon's new and revised human health water quality criteria for toxics and implementationprovisions in Oregon waterquality standards found in Chapter 340, Division 41, ofOregon's Administrative Rules (OAR 340-041) and submitted to the EPA onJuly 12, 2011 and July 21, 2011. The new and revised water quality standards identified below are hereby approved as consistent with Section 303 ofthe Clean Water Act, 33 U.S.C § 1313, and its implementing regulations. Waterquality standards describe the desired condition ofa waterbody and consist ofthree principle elements: (1) the "designateduses" ofthe state's waters, such as public water supply, recreation, propagation offish, or navigation; (2) "criteria" specifying the amounts ofvarious pollutants, in either numeric or narrative form, that may bepresent in those waters without impairing the designated uses; and (3) antidegradation requirements, providing for protection of existing water uses and limitations on degradation ofhigh quality waters. The EPA's regulations at 40 C.F.R. Part 131 describe the minimum requirements for each ofthese three elements of water quality standards. The new and revised water quality standards submitted on July 12 and 21,2011 revise Oregon's human health criteria with criteria calculated using a fish consumption rate of 175 grams per day. They also add a new performance-based provision that authorizes Oregon Department of Environmental Quality (ODEQ) to develop site-specific background pollutant criteria and significantlyrevises Oregon's variance authorizing provision. The EPA is approving all new and revised provisions which we determined to be water quality standards under Section 303(c) of the CWA and acknowledges the otherchanges to OAR 340-041 that are not water quality standards. Furthermore, we acknowledge the rule changes made to OAR 340-042 and 045. We understand that aU ofthese rules will be usedbyODEQ to implement Oregon's water quality control programs.



# -The new and revised human health criteria address the revisions EPA identified as necessary in its June 1,2010disapproval action to comply with the CWA. I The revisions to the human health criteria address this disapproval action and the EPA's concerns regarding the protection ofhigh fish consuming populations in Oregon. Today's approval action completes the EPA's disapproval action ofthe human health criteria onJune 1, 2010. Therefore, both the EPAand ODEQ have completed theirCWA obligations stemming from the EPA's June 1,2010 disapproval action.


### BACKGROUND
In 1999, ODEQ initiated a review ofOregon's criteriafor toxic pollutants contained in OAR 340-041-0033. The new and revised human health criteria for 104 toxic pollutants and submitted to the EPA for review underthe CWA on July 8, 2004 were among the changes made pursuant to this review. Shortly after receipt ofthis package, the EPA was contacted by the Confederated Tribes ofthe Umatilla Indian Reservation regarding theirconcerns that the fish consumption rate used to derive the 2004 criteria (17.5 grams per day) did not adequately protectTribal subsistence consumers. Ensuing discussions led to an agreement that ODEQ, the UmatillaTribes and the EPAwouldconduct apublic process to review the fish consumptionrate appropriate for protection ofdesignated uses in Oregon's waters. On October 23,2008, the three governments recommended to Oregon'sEnvironmental Quality Commission (Commission) that a rate of 175 grams per day be utilized for developing criteria for Oregon's waters. The Commissionconcurred with this recommendation and directed ODEQ to revise the human health criteria using a fish consumption rate of 175 grams perday and to review implementation measures to be used in association with these criteria. ODEQ established two work groups to provide additional feedback during that process. On June 1,2010, the EPA disapproved Oregon's human health criteria submitted in 2004 since these criteria were not protective ofOregon's designated use offishing consistent with the Commission's October2008 directive. The EPA's disapproval action extended to the majority of new and revised human health criteriathat were based on a fish consumption rate of 17.5 grams perday as well as the footnotes associated with those criteria. At this time, the EPA also approved the human healthcriteria for asbestos and copper, several footnotes, the withdrawal of eight human health criteria, and revisions to the narrative toxic provisions at OAR 340-041­ 0033(1) and (2). In response to the Commission's October 2008 directive and in order to remedy the EPA'sJune 1,2010, disapproval action, ODEQ proposedrevisions to OAR 340-041 on December 15,2010. ODEQ provided aformal public commentperiod on the proposed revisions and held nine public hearings. The public comment period extended from December 21,2010, through March 21,

1June 1,2010. LeUer from Michael A. Bussell, Director, Office ofWater and Watersheds, EPA Region 10 to Neil Mullane, Administrator, Water Quality Division, ODEQ, Re: EPA's Action on New and Revised Human Health Water Quality Criteria for Toxics and Revisions to Narrative Toxics Provisions in Oregon's Water Quality Standards. 2 

# o PrintedonRscycletlPaper2011. The one thousand and seventy-five written comments were received to which ODEQ responded. Revisions were adopted by the Commission onJune 16, 2011, and filed with the Oregon Secretary ofState on July 13,2011. ODEQ submitted these revisions to EPA for review and approval on July 21, 2011. Oregon's submittal included a letter dated July 20, 2011, from Larry Knudsen, Assistant Attorney General, certifying that the revisions were adopted in accordance with Oregon State law. TheEPA is approving the water quality standards within the July 21, 2011, submittal as part ofthis action. ODEQ also submittedrevised human health criteriafor arsenic in a separate submittal onJuly 12, 2011. ODEQ accepted public comments on its revised arsenic criteriafrom August 25 to September 30,2010, and held public hearings in Portland and Pendleton. ODEQ also conducted further public comment on a revised proposedrule from February 1to February 23,2011. These revisions were adopted by the Commission on April 21, 2011, and became effective under State law upon filing with the Oregon Secretary ofState on June 30,2011. ODEQ submitted the revisions to the human health criteria for arsenic to the EPA for review and approval onJuly 12, 2011. The EPA is approving the revised human health criteria for arsenic as part ofthis action. While the July 21, 2011, submittal included revisions to a numberofprovisions in OAR 340­ 041,42 and 45, the EPA is acting only on those new and revised provisions which are considered waterquality standards under Section 303(c) ofthe CWA. ODEQ submitted revisions and requested the EPA review and act on the waterquality standards contained in OAR 340-041. Revisions addressed in today's action canbe divided into the general categories described below. 1. New andrevisedhumanhealth criteria at OAR 340-041-0033. ODEQ adopted new and revised human health criteriafor 104 toxic pollutants (48 noncarcinogens and 56 carcinogens) based on a fish consumption rate of 175 grams per day. The criteria for these toxic pollutants are consistent with the EPA's 304(a) recommended criteria values2 and were derived using the methodology presented in the EPA's 2000MethodologyforDerivingAmbient Water Quality Criteriafor the Protection of Human Health3 and the EPA's 2001 Methylmercury guidance.4 The new human health criteriafor toxic pollutants are contained in Table 40. Additional revisions related tothe human health criteriainclude:

• Theremoval of 13 pollutants consistent with EPA's removal of304(a) recommended criteria values for these same pollutants. Most ofthese recommended criteria were withdrawn since the EPA developed individual criteria for the most toxic ofchemicals in the family ofchemicals represented by those 13 pollutants.

22009. EPA National Recommended Water Quality Criteria. Available at: http://water.eva.S!ovIscitech/s\vguidance/standards/current/upload/nrwqc-::WOi1.pdf 3 EPA. 2000. MethodologyforDerivingAmbient Water Quality Criteriafor the Protection of Human Health. EPA822-B-00-004. Available at: htlp:llwww.epa.gov/watersciencclcriterialhurnanhealth/methodlcomplete.pdf 4 EPA. 2001. Water Quality Criterionfor the Protection of Human Health: Methylmercury. U.S. Environmental Protection Agency, Office ofWater, Washington, D.C. EPA 823-R-OI-001. Available at:**http://www.epa.g()V/walersciencelcriteria/rnethylmcrcllry/~locumenthtml .**  3 

# o Prlnt.a onRecyclfldPaper• Several new, revised and withdrawn footnotes to the criteria in order to provide clarification. • Revisions to the water quality standards provision at OAR 340-041-0033 which provides narrative language explaining the human health and aquatic life criteria tables. 

### 2. Revisedarsenic humanhealth criteria. ODEQ adopted revised human health criteria for arsenic and submitted the revised criteria separately to the EPAonJuly 12,2011. 

### 3. New implementationprovision entitled "Site-specific backgroundpollutantcriteria" at OAR340-041-0033(6). ODEQ adopted a new provision that authorizes the development ofa site-specific criterion under specified conditions and applicable to waterbodies in the vicinity ofa NPDES permitted discharge that receives a pollutant from the intake water, concentrates that pollutant without adding mass, and discharges itback to the receiving water. The new criterion may not be more three percent higher than the existing criteria or represent a carcinogenic risk ofgreater than 10-4• Several other limiting factors are also defined inthe new rule. 

### 4. Revisedvarianceprovision at OAR340-041-0059. ODEQ has removed the variance language found at OAR 340-041-0061(2) and replaced itwith new language at OAR 340-041-0059. ODEQ's objective for these revisions was to ensure that variances and their accompanying pollutantreduction plans will result in improvements in water quality, efficiencies in the administration process, and add general clarification to the rule. A new requirement was added that a pollutant reduction plan be developed for each facility granted a variance. 

### 5. A correction to a cross-reference in thebacteriaprovisionfoundat OAR340-041­ 0009(10). ODEQ adopted a revision to correctthe cross-reference in this provision to reflect rule numbering revisions in OAR 340-041-0061. 

### 6. Revisedrules explaininghowthemechanisms for forestry andagriculturalnonpoint sources work to meetwaterquality standards andthe totalmaximumdaily load (TMDL) loadallocations undertheForestPracticesActandAgriculture Water Quality ManagementActat OAR 340·041·0007(5) andOAR 340-041-0061(9)(a)(E), (10), and(11). ODEQ adopted revisions to clarify how nonpoint sources will be addressed in TMDLs and how ODEQ will interact with the Departments ofForestry and Agriculture to ensure needed programs are in place to address these sources ofpollution.



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### DECISION In accordance with its Clean Water Act authority, 33 U.S.C § 1313(c)(3) and 40 C.F.R. part 131, the EPA is approving the following because they are protective ofOregon's designated uses:

• New human health toxic criteria for 42 pollutants in Table40. • Revised human health toxic criteria for 63 pollutants (including arsenic) in Table 40. • New footnotes for cyanide, PCBs methylmercury and arsenic in Table40. • Removal of 13 general human health criteria since the state has adopted more specific human health criteria for each toxic pollutant consistent with the EPA's current 304(a) criteriarecommendations. • New and revised provisions at OAR 340-041-0033(1), (3) and (4)which describe dates when the toxics criteriain Tables 20, 33A, 33B and 40 become effective under state law and the Clean Water Act. • Minor editorial revision to correct an error in the cross-reference in the bacteriaprovision at OAR 340-041-0009(1 0). • Revised variance provision at OAR 340-041-0059. (note: there are several sections within the variance provision that the EPA did not consider to beWQS and therefore, took no action on). • New site-specific backgroundpollutant criteria at OAR 340-041-0033(6). TheEPA does not consider the following revisions to be waterquality standards under Section 303(c) ofthe CWA and therefore; the EPA is taking no action on them:

• New footnote for human health taxics criteriafor barium in Table 40. • Revised footnotes for asbestos, chlorophenoxyherbicide (2,4,5,-TP), chlorophenoxy herbicide (2,4,-D), copper, methoxychlor, and nitrates. • Removal offootnotes for hexachlorocyclo-hexane-technical, nitrosamines, and nitrosodiethylamine, N. • New introductory summarylanguage for Table40 which explains the purpose ofthe criteria, criteria derivation and the format ofthe table. • Revised rules at OAR 340-041-0007(5) which explain how the mechanism for forestry nonpoint sources work to meet water quality standards and the total maximum daily load (TMDL) load allocations underthe Forest Practices Act. • Revisions to OAR 340-041-0061(9)(a)(E), (10), and (11) which correct an error in the cross-reference to the antidegradation policy and revised rules regarding forestry and agricultural nonpoint sources underthe Forest Practices Act and AgricultureWater QualityManagement Act. A detailed discussion ofthe rationale supporting today's actions is included in the enclosed Technical Support Document.



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### CONCLUSION In closing, we would like to thank ODEQ and the Commission for your dedication and leadership throughout this rule development process. Oregon's workon the Fish.Consumption Rate Review Project resulted in a solid foundation that supported the development ofthese human health criteria that protect all consumers offish caught in Oregon's waters, the general population as well as tribal fishers and otherhigh-consuming populations in the State. This rule will serve as a solid example to other states in the Northwest and throughout the country as they address similarissues. Oregon's work will also provide a framework for the EPA Region 10's efforts with other states and tribes in ourRegion. We appreciate the opportunity to work closely with you, your staff, the Confederated Tribes of the Umatilla Indian Reservation, and your stakeholders throughout this process. You have conducted a thoughtful and thorough process. Ithas been a great experience to partner with the State ofOregon in this effort. The EPA understands that the implementation ofthese standards is on a long-term path and is committed to working with ODEQ in the years ahead as the standards are implemented. Providing Oregon assistance in processing variance requests and addressing otherissues that may arise from the adoption ofthese more stringent standards is a high priority for me and the Office ofWater and Watersheds. Please let us know how we might be ofcontinues assistance as you encounter needs and questions that result from implementation ofthese criteria. If you have any questions concerning this letter please contact me at (206) 553-4198 oryou may contact Jannine Jennings, Water Quality Standards Unit Manager, at (206) 553-2724. Sincerely,. , __/ 

# tAtt-L/

Michael A. Bussell, Director Office ofWaterand Watersheds

Enclosure:

cc: Ms. JenniferWigal, ODEQ Ms. Debra Sturdevant, ODEQ Ms. Andrea Matzke, ODEQ Mr. Eric Quempts, CTUIR Mr. Carl Merkle, ConfederatedTribes ofthe Umatilla Indian Reservation



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