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ASIWPCA call December 15, 2010 2:00 pm

– 3:30 pm (ET) **EPA participants** : Shari Barash, Manjali Vlcan, Grace Robiou, Christina Christensen, Fred Leutner **Q6: One idea that could makes variances appealing to some people would be for the**  **regulation to require that progress be made towards meeting WQS during the period of the**  **variance. If progress milestones were required as part of the variance implementation, do you think your public would find variances more appealing or less appealing?** 
 ID: have suc h a requirement; doesn’t make a difference  VA: Get grief from enviros re: variances, thinks this could help  NY: have such a requirement; for states w/o variances, thinks this would make them more appealing  CA: would help make variances more appealing; great idea  OR: this is central to OR’s revisions to variances; critical; OR recognizes progress may not be significant but could still be beneficial. They call this “pollutant reduction plans”.  ID: we put these things in variances (our state doesn’t have primacy)  OR: gets confusing when we talk about the permittee not being able to attain the use; should say

the permittee cannot attain the WQS.  OK: need clarity

in terms

– variance to WQS vs. variance to use and/or criteria. **Q7 :**  **We understand a few State s have not classified all of their waters and have heard it**  **could be beneficial to have EPA specify that all waters must be designated to protect 101(a)(2) goal uses unless demonstrated to be unattainable through a UAA. How would**  **this affect the way your state is administrating its standards? Would it be helpful in dealing**  **with an adjacent state that might not have adopted standards for shared waters?**
 NY: all waters classified, but could see benefits to states w/unclassified waters  CO: all waters classif ied that can be classified (e.g., ditches not classified)  CA: all waters classified that can be classified  ID: all waters should be classified, but they do have some unclassified waters; however, these waters have a “default” level of 101(a) protection a ssigned. Noted that they don’t need to go through a UAA process to designate their waters. **Q8: After removing a 101(a)(2) use through a UAA, does your State generally identify the**  **appropriate designated use to replace the unattainable use? And if so, how ?** 
 CA: they

would replace unattainable use w/another use or create a new use thru a sub
category  NY: waters don’t have a single “best” use

– if remove one use, other uses remain in place. If NY removes a Class C/fishing use, would leave another use (e.g., fish survival) in its place.2

 CO: some situations below abandoned mines where use has been removed all together (with nothing designated in its place, but did go through some sort of analysis to do this); in other cases, adopt SSC.  OK: thinks that a trend towards requiring a full UAA, when onl y the criterion is changing, is worrisome (OST clarified this is not our intent). **Q9: If EPA were to require the “highest attainable use” be adopted in place of the**  **unattainable use, how would this change your State’s day**  **- to**  **- day practices?** 
 CO: devil in details. How would different Regions interpret this? What is the “showing” that would have to be made? This scares her

– prefers we not require this

– doesn’t think CO is doing anything wrong currentl y.  AK: so unds like additional work

– what is the benefit of this?  ID: thinks this is very problematic. Idaho doesn’t view subcategories of uses as being “better” than another subcategory
.  OK: concept is problematic with effluent dominated streams.  ID: attempted UAA where a seasonal coldwater aquatic life use was more appropriate. UAA was disapproved.  PA: How does this differ from existing use protection?  ME: confusing concept b/c highest attainable use could be higher than 101(a) use.  OR: devil is in details . How deep would anal ys is go in terms of figuring out HAU? In establishing HAU

– implicit requirement to determine pollutant concentration? How is this constructed? Thinks it could require a disproportionate amount of effort for a use change.  CA: agree with OR. Must be carefully defined. Relationship between existing use and HAU. Challenge is coming up with a new criteria. **Q10: We are considering requiring in regulation that States provide documentation or**  **conduct an evaluation in order to remove a non 101(a)(2) use, such as a public water supply**  **use.** We expect this would help level the playing field, where today some states are being asked to conduct full UAAs for removing such uses, while others are given more discretion. **Such an evaluation would not**  **be based on attainability. How would this impact your current practice?** 
 NY: would not impact NY. They don’t distinguish between removing 101(a) and 303(c) uses. Alway s require UAA.  CO: Devil in details. Alway s make an adequate showing when they remove a use. Will be burdensome for some states.  EPA pointed out that this requirement would likely lower the bar for some states. **Q11 and Q12 :**  **Can you share with us how your State ensures your public is involved in a Triennial Review? We are considering**  **requiring that States and Tribes take public comment on the scope of the Triennial Review. At what point in your review process do**  **you involve your public and how would this change affect your process?**3

 AK: They

public notice ideas for revisions, involve tribes early
.  PA: Have public notification process; share with Advisory Council through a public meeting. Suggest the scope at the Advisory Council but don’t take comments on the scope.  OK: Seems like “solution looking for a problem.”  ??: States do thi s; EPA should not do this.  AK: It is policy

(not regulation) to check in with public on scope of triennial review.  VA: as one triennial review concludes, state receives comments on the scope of the next review (Shari pointed out that VA is meeting our new requirement).  OR: Hate to see any additional focus on triennial review process

– just adding opportunities to be litigated on.  CA: they

do what we are asking

– solicit things to be covered in triennial review, then prioritize the list.  NY: Extensive p ublic outreach requirements, but do not have a requirement to involve public in the scope. Could this be an unfunded mandate issue. If EPA moves forward, talk with states.  NJ: have done this informally via email.  ??: agrees with OR. Capacity issue. Might make sense if triennial review were more like 5 or 10 years. **Q13: We are considering clarifying that, in order to constitute an Administrator’s**  **Determination, a document must be signed by the Administrator and contain a statement that the document is a d**  **etermination under 303(c)(4)(B). We think this will allow EPA to provide States and Tribes with standards advice and recommendations in writing, without**  **a concern that such letters will be construed as a determination. How will this affect your State’s c**  **urrent practices?**
 OK: won’t change practices at state level; may improve interactions with Regions.  OR: if objective is to “free the pen”

– could be helpful.  ??: Probably

helpful where states need guidance on particular issue.  NY: good idea.