UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 10

1200 Sixth Avenue Suite 900

Seattle WA 98101 3140

OFFCE OF

OCT 1 7 2011

WATER AND WATERSHEDS

Mr Neil Mullime Administrator

Water Quality Division

Department of Environmental Quality

811 SW Sixth Avenue

Portland Oregon 97204 13 90

Re EPA's Approval of New and Revised Human Health Water Quality Criteriafor Taxies

and Implementation Provisions in Oregon's Water Quality Standards Submitted on July

12 and 21,2011

Dear Mr Mullane

The US Environmental Protection Agency EPA has completed its Clean Water Act CWA review of Oregon's new and revised human health water quality criteria for taxies and

implementation provisions in Oregon water quality standards found in Chapter 340 Division 41

of Oregon's Administrative Rules OAR 340 041 and submitted to the EPA on July 12 2011

and July 21 2011 The new and revised water quality standards identified below are hereby

approved as consistent with Section 303 of the Clean Water Act 33 USC 1313 and its

implementing regulations

Water quality standards describe the desired condition of a waterbody and consist of three

principle elements 1 the designated uses of the state's waters such as public water supply

recreation propagation of fish or navigation 2 criteria specifying the amounts of various

pollutants in either numeric or narrative form that may be present in those waters without

impairing the designated uses and 3 antidegradation requirements providing for protection of

existing water uses and limitations on degradation of high quality waters The EPA's regulations

at 40 CPR Part 131 describe the minimum requirements for each of these 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 sitespecific background pollutant criteria and

significantly revises 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 other changes 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 all of these rules will be used by ODEQ to implement Oregon's water quality

control programs

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The new and revised human health criteria address the revisions EPA identified as necessary in

its June 1 2010 disapproval action to comply with the CWA1The revisions to the human health

criteria address this disapproval action and the EPA's concerns regarding the protection of high

fish consuming populations in Oregon Today's approval action completes the EPA's

disapproval action of the human health criteria on June 1 2010 Therefore both the EPA and

ODEQ have completed their CWA obligations stemming from the EPA's June 1 2010

disapproval action

BACKGROUND

In 1999 ODEQ initiated a review of Oregon's criteria for toxic pollutants contained in OAR

340 0410033 The new and revised human health criteria for 104 toxic pollutants and submitted

to the EPA for review under the CWA on July 8 2004 were among the changes made pursuant

to this review Shortly after receipt of this package the EPA was contacted by the Confederated

Tribes of the Umatilla Indian Reservation regarding their concerns that the fish consumption rate

used to derive the 2004 criteria 17.5 grams per day did not adequately protect Tribal

subsistence consumers Ensuing discussions led to an agreement that ODEQ the Umatilla Tribes

and the EPA would conduct a public process to review the fish consumption rate appropriate for

protection of designated uses in Oregon's waters

On October 23 2008 the three governments recommended to Oregon's Environmental Quality

Commission Commission that a rate of 175 grams per day be utilized for developing criteria

for Oregon's waters The Commission concurred with this recommendation and directed ODEQ

to revise the human health criteria using a fish consumption rate of 175 grams per day 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 of Oregon's designated use of fishing consistent with the

Commission's October 2008 directive The EPA's disapproval action extended to the majority of

new and revised human health criteria that were based on a fish consumption rate of 17.5 grams

per day as well as the footnotes associated with those criteria At this time the EPA also

approved the human health criteria 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's June

1 2010 disapproval action ODEQ proposed revisions to OAR 340 041 on December 15 2010

ODEQ provided a formal public comment period on the proposed revisions and held nine public

hearings The public comment period extended from December 21 2010 through March 21

1

June 1 2010 Leuer from Michael A Bussell Director Office of Water 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 Criteriafor Toxics and Revisions to Narrative Toxics Provisions in Oregon's Water Quality

Standards

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2011 The one thousand and seventy five written comments were received to which ODEQ

responded Revisions were adopted by the Commission on June 16 2011 and filed with the

Oregon Secretary of State 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 The EPA is approving the water quality standards within the

July 21 2011 submittal as part of this action

ODEQ also submitted revised human health criteria for arsenic in a separate submittal on July

12 2011 ODEQ accepted public comments on its revised arsenic criteria from August 25 to

September 30 2010 and held public hearings in Portland and Pendleton ODEQ also conducted

further public comment on a revised proposed rule from February 1 to February 23 2011 These

revisions were adopted by the Commission on April21 2011 and became effective under State

law upon filing with the Oregon Secretary of State on June 30 2011 ODEQ submitted the

revisions to the human health criteria for arsenic to the EPA for review and approval on July 12

2011 The EPA is approving the revised human health criteria for arsenic as part of this action

While the July 21 2011 submittal included revisions to a number of provisions in OAR 340

041 42 and 45 the EPA is acting only on those new and revised provisions which are considered

water quality standards under Section 303 c of the CW A ODEQ submitted revisions and

requested the EPA review and act on the water quality standards contained in OAR 340 041

Revisions addressed in today's action can be divided into the general categories described below

1 New and revised human health criteria at OAR 340041 0033 noncarcinogens ODEQ adopted new and revised human health criteria for 104 toxic pollutants 48

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 2000 Methodology for Deriving Ambient Water Quality Criteriafor the

Protection of Human Health3 and the EPA's 2001 Methylmercury guidance 4 The new

human health criteria for toxic pollutants are contained in Table 40

Additional revisions related to the human health criteria include

• The removal of 13 pollutants consistent with EPA's removal of 304 a

recommended criteria values for these same pollutants Most of these recommended

criteria were withdrawn since the EPA developed individual criteria for the most

toxic of chemicals in the family of chemicals represented by those 13 pollutants

2 2009 EPA National Recommended Water Quality Criteria Available at

httpwater Cpa SOV scihchSVguidance standards current u ploadnrwqc 0011 pdf

3 EPA 2000 Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health EPA

822B00004 Available at htlpwww epagov waterscienec criterialhurnanhealth method completc pdf

4

EPA 2001 Water Quality Criterion for the Protection of Human Health Methylmercury US Environmental

Protection Agency Office of Water Washington DC EPA 823R01001 Available at

httpwww epagwwaterscienee criteria rnethylmercuryl cument html

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• 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 Revised arsenic human health criteria

ODEQ adopted revised human health criteria for arsenic and submitted the revised

criteria separately to the EPA on July 12 2011

3 New implementation provision entitled Sitespecific background pollutant criteria

at OAR 340 04100336

ODEQ adopted a new provision that authorizes the development of a sitespecific

criterion under specified conditions and applicable to waterbodies in the vicinity of a

NPDES permitted discharge that receives a pollutant from the intake water concentrates

that pollutant without adding mass and discharges it back to the receiving water The

new criterion may not be more three percent higher than the existing criteria or

represent a carcinogenic risk of greater than 104• Several other limiting factors are also

defined in the new rule

4 Revised variance provision at OAR 340041 0059

ODEQ has removed the variance language found at OAR 340041 00612 and replaced

it with new language at OAR 340041 0059 ODEQ's objective for these revisions was

to ensure that variances and their accompanying pollutant reduction 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 crossreference in the bacteria provision found at OAR 340 041

0009 10

ODEQ adopted a revision to correct the cross reference in this provision to reflect rule

numbering revisions in OAR 340 041 0061

6 Revised rules explaining how the mechanisms for forestry and agricultural nonpoint

sources work to meet water quality standards and the total maximum daily load

TMDL load allocations under the Forest Practices Act and Agriculture Water

Quality Management Act at OAR 340 041 00075 and OAR 340 041 00619aE

10 and 11

ODEQ adopted revisions to clarify how nonpoint sources will be addressed in TMDLs

and how ODEQ will interact with the Departments of Forestry and Agriculture to

ensure needed programs are in place to address these sources of pollution

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EPAs DECISION

In accordance with its Clean Water Act authority 33 USC 1313 c3 and 40 CFR part 131

the EPA is approving the following because they are protective of Oregon's designated uses

• New human health toxic criteria for 42 pollutants in Table 40

• Revised human health toxic criteria for 63 pollutants including arsenic in Table 40

• New footnotes for cyanide PCBs methylmercury and arsenic in Table 40

• 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

criteria recommendations

• New and revised provisions at OAR 340 041 00331 3 and 4which describe dates

when the taxies criteria in 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 bacteria provision

at OAR 340 041 0009 10 • Revised variance provision at OAR 340 041 0059 note there are several sections

within the variance provision that the EPA did not consider to be WQS and therefore

took no action on

• New sitespecific background pollutant criteria at OAR 340 041 00336

The EPA does not consider the following revisions to be water quality standards under Section

303 c of the CW A and therefore the EPA is taking no action on them

• New footnote for human health taxies criteria for barium in Table 40

• Revised footnotes for asbestos chlorophenoxy herbicide 2,4,5TP chlorophenoxy

herbicide 2,4D copper methoxychlor and nitrates

• Removal of footnotes for hexachlorocyclo hexane technical nitrosamines and

nitrosodiethylamine N

• New introductory summary language for Table 40 which explains the purpose of the

criteria criteria derivation and the format of the table

• Revised rules at OAR 340 041 00075 which explain how the mechanism for forestry

nonpoint sources work to meet water quality standards and the total maximum daily load

TMDL load allocations under the Forest Practices Act

• Revisions to OAR 340 041 00619aE 10 and 11 which correct an error in the

crossreference to the antidegradation policy and revised rules regarding forestry and

agricultural nonpoint sources under the Forest Practices Act and Agriculture Water

Quality Management Act

A detailed discussion of the 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 work on the FishConsumption

Rate Review Project resulted in a solid foundation that supported the development of these

human health criteria that protect all consumers of fish caught in Oregon's waters the general

population as well as tribal fishers and other high 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 lO's

efforts with other states and tribes in our Region

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 It has been a great experience to partner with the

State of Oregon in this effort

The EPA understands that the implementation of these standards is on a longterm 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 other issues that

may arise from the adoption of these more stringent standards is a high priority for me and the

Office of Water and Watersheds Please let us know how we might be of continues assistance as

you encounter needs and questions that result from implementation of these criteria

If you have any questions concerning this letter please contact me at 206 5534198 or you may

contact Jannine Jennings Water Quality Standards Unit Manager at 206 553 2724

Enclosure

cc Ms Jennifer Wigal ODEQ

Ms Debra Sturdevant ODEQ

Ms Andrea Matzke ODEQ

Mr Eric Quempts CTUIR

Sincerely

LAJttLf

Michael A Bussell Director

Office of Water and Watersheds

Mr Carl Merkle Confederated Tribes of the Umatilla Indian Reservation

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