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# Federal Water Quality Coalition

September 17, 2010

Mail Docket

Office of Water

Mail Code 2822-T U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460

RE: Comments on Notice re Stakeh older Input; Revisions to Water Quality Standards Regulation Docket No. EPA-HQ-OW-2010-0606

Ladies and Gentlemen:

The Federal Water Quality Coalition (the “Coalition”) is pleased to provide the following comments on the No tice regarding Stakeholder Input; Revisions to Water Quality Standards Regul ation” (the “Notice”) that was issued by the U.S. Environmental Protection Agency (“EPA”) on July 30, 2010 (75 Fed. Reg. 44930).

The Coalition is a group of industrial companies, municipal entities, agricultural parties, and trade associations that are directly affected, or which have members that are directly affecte d, by regulatory decisions made under the

federal Clean Water Act. The Coalit ion members, for purposes of these comments, are as follows: Alcoa, Inc ., American Chemistry Council, American Coke and Coal Chemicals Institute, American Forest & Paper Association, American Iron and Steel Institute, Ameri can Petroleum Institute, Association of Idaho Cities, City of Superior (WI), Co eur D’Alene Mines Corporation, Edison Electric Institute, Ford Motor Comp any, Freeport-McMoRan Copper & Gold, Inc., General Electric Company, Hecla Mining Company, Indiana Coal Council, Mid America CropLife Association, Nati onal Association of Home Builders, Olin Corporation, Orange County San itation District, Pharmaceutical EHS Sustainability Council, Rubber Manufactur ers Association, Utility Water Act Group, Western Coalition of Arid States, and Weyerhaeuser Company.

Coalition member entities or their memb ers own and operate facilities located on

or near waters of the United States. Ma ny of these facilities operate pursuant to individual and/or general NPDES pe rmits for discharges into those waters. Those permits often include, and will include in the future, Fredric P. Andes, Coordinator Barnes & Thornburg LLP

One North Wacker Drive

Suite 4400 Chicago, IL 60606
(312) 214-8310Docket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 2

effluent limitations based on water quality stan dards established by the States or EPA.

The Coalition therefore has a direct interest in the matters addressed in the Notice.

I. INTRODUCTION

In the Notice, EPA announces its plans to begin a rulemaking to make changes to its water quality standards regulation (t he “WQS Regulation,” found at 40 CFR 131). The Notice provides a genera l overview of the regulatory changes that EPA is considering, and seeks stakeholder input rega rding those changes. That input is being obtained through several means, including li stening sessions be ing held by EPA, meetings with stakeholders, and submittal of written comments. The FWQC has participated in the listening sessions, had a meeting with Agency staff on September 7, 2010, and is now submitting these comments. We look forward to continuing to participate in this regulatory process as EPA moves toward the possible issuance of a formal proposed rule in the summer of 2011.

In these comments, the FWQC will a ddress each of the possible regulatory changes that EPA is considering. In genera l, we do not see an urgent need for major revisions to the WQS Regulation. To the exte nt that EPA does proceed with changes to that rule, they should be focused on issues where there is a clear need to clarify the existing requirements. In making changes, EPA needs to ensure that it is not infringing on the States’ primary role in setting water quality standards under the Clean Water Act.

EPA also should make sure that it does not unduly restrict the use of available Act mechanisms, such as Use Attainability Analyses (UAAs) and variances, which are needed so that water quality standards and permit limits are appropriate and attainable.

II. ANTIDEGRADATION

The WQS Regulation currently requires Stat es to identify the methods that they are using to implement their antidegradati on policies. EPA is considering making two changes in that provision: (1 ) to specify minimum elements that must be included in the State’s antidegradation implementation proce dures; and (2) to provi de that the State’s implementation procedure must be adopted in to the State’s water quality standards and then submitted to EPA for approval. We have concerns about both of these requirements.

As to the “minimum elements” that a St ate would apparently have to submit for EPA approval, we have several concerns, gro unded in the basic structure of the Act. Antidegradation is a component of State water quality standard s, and States are supposed

to be able to make their own choices as to how to implement their water quality standards. This is particularly so for those States (almost all) that have been delegated authority to issue NPDES permits. The only cons traint should be that the States may not

act in a manner that is inconsistent with the Act. Since the Act mentions antidegradation only once (in section 303(d)(4)) and providesDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 3

no specifics as to what elements must be contained in a State’s antidegradation procedures, there is no basis for EPA to require States to implement antidegradation in a particular way. We understand EPA’s interest in ensuring that States actually implement the antidegradation program, but that is a management concern that can be addressed without adding new regulatory requirements.

To the extent that EPA does decide to specify mi nimum elements of State antidegradation programs, the Agency needs to recognize that there are some aspects of those State programs that have proven to be important in ensuring that those programs can be implemented in an efficient and e ffective manner. Any EPA requirements should not interfere with States’ ability to make thei r own decisions as to how to structure their programs. For example, many States have ad opted “de minimis” levels, so that small increases in pollutant loadings do not have to undergo antidegrad ation review, and the State agency can focus its resources on larg er projects that can have more impact on water quality. In addition, some States have adopted exceptions to antidegradation review for particular kinds of projects, where review is unnecessary (since a similar review is taking place under a nother program) or where it is clear that the action being planned is of clear social/ economic benefit (and therefor e would pass antidegradation review anyway). An example is an increase in loading due to installation of required air pollution control equipment; it would be enviro nmentally counterproduc tive to refuse to allow a facility to install measures needed to comply with the Clean Air Act because it has to go through antidegradation review for a small loading increase to an unimpaired waterbody. These exceptions and “de minimis” levels are critical to development of a properly functioning State antidegradation pr ogram, and EPA should not hamper States from developing these aspects in the manner that makes the most sense for their particular situations.

In addition to possibly specifying mini mum elements for State antidegradation programs, EPA also suggests that it could re quire States to adopt their antidegradation procedures into the State wate r quality standards, and then submit those procedures for EPA approval. The FWQC strongly disagrees with imposition of such a requirement. In the first place, we see no legal basis for EP A to dictate how States (particularly NPDES States) should implement their water quality standards. The Star-Kist decision indicates

that these are State choices. Some States currently implement antidegradation through rules, and others use guidance instead. In so me cases, that decision is affected by State laws that must be met. As long as the pr ogram is being implemented, it should not be an

EPA concern whether it is done under a State rule or a State polic y or a State guidance document. If EPA is seeking State regulati ons because it can then require that those regulations be built into the water quality stan dards, which then have to be submitted for EPA approval, that is a wholly illegitimate wa y for EPA to attempt to control how States develop their antidegradation procedures, th rough its power to approve or disapproveDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 4

State standards. Our concern is that EPA will use this power to make States adopt antidegradation provisions that are to EP A’s preference, not the State’s.

If EPA’s concern is that some Stat es are not currently implementing the antidegradation program, the solution is not to impose Fe deral requirements on all States, including those that are implementing their antidegradation standards. Instead, EPA should work closely with the States that ar e not implementing the program, to determine why that is the case and to find solutions that will enable the program to be implemented in those States. In many cases, we believe th at the issue can be a ddressed by clearer EPA guidance that explains the basics of antideg radation and shows States, in a step-by-step manner, how antidegradation can be built into their permitting programs in an effective and efficient manner. At this time, there is no single EPA document that does that job, even though the antidegradation program has been in EPA rules for more than 20 years. Before adopting new regulations, EPA should issue adequate guidance along those lines, and then determine if anything further is needed.

III. ADMINISTRATOR DETERMINATIONS

Under the Act (section 303(c )(4)(B )), EPA can “determine” that a new or revised water quality standard is necessary to meet the requirements of the Act. If such a determination is made, EPA has to adopt a ne w standard in place of the State. EPA is considering clarifying that a “determination” that triggers that requirement must be signed by the Administrator or th eir duly authorized representati ve, and must state that it

constitutes a “determination” under section 303( c)(4)(B). The FW QC supports this clarification, which we think is only logical. Before a stat utory obligation is triggered, it should be clear that the Agency actually inte nded to make the finding that created that obligation. No one should be able to claim that by some offhand factual statement in an Agency report or letter, EPA made a “determina tion” that requires it to take over a State’s responsibilities and adopt new water quality standards, which w ill eventually be implemented in binding limitations in NPDES permits. That kind of attempt to “game the system” should not be allowed, and the clarification suggested by EPA should stop that from happening in the future.

IV. DESIGNATED USES

EPA is considering clarifying several aspects of the provi sions of the WQS Regulation that address designa ted uses. Among those cha nges, EPA may provide that designated uses reflecting the section 101(a) goals (“fishable/swimmable”) are presumed attainable unless otherwise demonstrated, and that those uses can only be changed based on a UAA. The FWQC understand s that this action would codi fy the policy that EPA has always held. Our concern is that this policy has led to States having to treat waters as fishable/swimmable, and then havi ng to adopt standards, TMDLs and permit limits based on that pres umption, even though those watersDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 5

clearly have no capability to meet the fishable/swimmable uses and never will have that capability. The only way to avoid that result is for States to do detailed UAAs to justify less stringent uses, and no States have the re sources to do that work for the many waters

that should have uses other th an “full fishable/swimmable.” The result is an enormous waste of resources on trying to meet standard s that cannot be met, which would be better spent on focused plans to have each waterbody meet the uses that are appropriate and

attainable.

We understand that EPA’s response to our concern over unattainable uses is that the UAA process exists. However, our expe rience is that that process is underused, partly due to confusion and misunderstanding ov er when it can be used and how it should be applied. While EPA has issued some guida nce in this area, that action has not been sufficient to help the States implement this program in the manner that is needed. Therefore, if EPA is going to retain and codify its presumption that waters are “fishable/swimmable” (which we do not believe is legally supported), it is essential that the Agency also take steps to ensure that the UAA program will function effectively to help States adopt the right uses for each wa terbody – uses that are both scientifically defensible and technically and economically a ttainable. At the same time, it would also be helpful for EPA to clarify when States can make changes in their designated uses without having to conduct a UAA. For exam ple, EPA has previously indicated that States may “refine” their uses (for exampl e, change from “recreational” to “powerboating”) without having to go through the UAA process. That flexibility in defining uses is important, and EPA should ensure that Stat es retain the ability to take that kind of

action.

V. VARIANCES

Under the WQS Regulation, States can adopt variances as one of their mechanisms for implementing water quality standards. EPA is considering adding requirements “to ensure proper use of variances and reduce the possibility of inappropriate use.” This statement is fairly vague, and EPA cites no specific examples of variance misuse. We understand that the Agen cy is focused on issues such as ensuring that variances have expiration dates, and that sources subjec t to variances make progress toward reducing loadings during the term of the variance. We unde rstand EPA’s concern in those areas, and are interested in working with EPA to make sure that those concerns are addressed. However, it is important to view those issues in a broader context, in

terms of the role that variances can and should apply under the Act.

Variances are an extremely important regulat ory tool for States to have available,

and it will become even more critical in th e future. States and EPA are increasing their efforts to impose stringent water quality-based effluent limits in NPDES permits. In many cases – particularly when “fishable/swimmable” uses apply – those limits will not be possible to attain. In some cases, they areDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 6

physically possible to meet, but only by incurri ng control costs that are outside of the financial capability of the bus inesses or communities that w ould have to meet them. In other cases, it may be possible in the long-term to meet the limits, but at the time that the permit is issued, there is simply no way to guarantee that they will become attainable at some point in the future. In all of these situ ations, it would be helpfu l to be able to issue variances, so that the sources are able to stay in compliance with their permits while they are working to reduce their discharges toward the applicable standards. However, EPA guidance on variances has been fragmentary and inconsistent. To ensure that the mechanism is used when it should be, and is used appropriately, EPA should consider issuing guidance that clearly explains the s ituations in which variances can be used, encourages the issuance of variances in thos e situations when requested by the permittee, and provides basic elements of how variances should be i ssued, without dictating the specifics that States can develop for themselves.

VI. TRIENNIAL REVIEW

EPA is considering clarifying several as pects of the proce ss by which States review their water quality standards, which is supposed to occur every three years. There are two changes being contemplated. One woul d require States to request and consider public comments on the scope of the review. The FWQC supports th at concept. The other change would require St ates to evaluate, when they do their triennial reviews, whether their existing water quality criteria are still protective of designated uses. We have no problem with such a requirement, as lo ng as it is not one-sid ed. In other words, if States are going to review their criteria relative to the designated uses, they should review both whether the criteria are stringe nt enough, and whether the criteria are too stringent – whether they go beyond the level that is needed to protect the uses. 1 In addition, the State should assess whether the criteria remain sc ientifically defensible. If

new information shows that the criteria are no longer defensible, the criteria should be changed (no matter in which direction the change moves them). These measures would help ensure that at any point in time, State water quality criteria are set at the levels needed to protect the uses that have been designated – which, as noted above, need to also be appropriate and attainable. When that is accomplished, public and private resources can be focused, in an effective and efficient manner, on those water quality issues that truly need to be addressed and which can be practically remedied.

VII. UPDATES TO REFLECT COURT DECISIONS

EPA has suggested several revisions of the WQ S Regulation that it believes are needed to address court decisions. While the FWQC has no problem with the basic concept of

1 (The same is true of the uses themselves: during the triennial review process, the State should evaluate the designated uses to determine if, based on current info rmation, it is reasonable to expect that they can be attained. If not, they should be revised, through the UAA process.)Docket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 7

revising rules when needed to address judi cial rulings, we do have some concerns regarding the particular changes that EPA has discussed in the Notice.

The first issue discussed in the Notice re lates to the definition of “water quality standards.” EPA is considering revising that definition “to reflect the results of and

EPA’s actions on remand from” the 11 th Circuit Court of Appeals decision in Florida

Public Interest Research Gr oup Citizen Lobby, Inc. v. EPA , 386 F.3d 1070 (11 th Cir. 2004) (“ Florida PIRG ”). That statement is vague; for the FWQC to respond adequately, we need the Agency to clarify its intended course of action. The Notice appears to be referring to two discrete events that will in fluence the shape of EPA’s revisions to the WQS Regulation: the Court of Appeals ruling in Florida PIRG , and EPA’s action on remand from that ruling. We have strong c oncerns about the Court ruling. As to EPA’s action on remand from that ruling, we need a clearer understanding of how the rationale for those specific actions might be applied nationally.

The Court of Appeals decision in Florida PIRG required that certain aspects of a State’s process for listing impaired waters (under Section 303(d) of the Act) must be adopted as part of the State’ s water quality standards and submitted to EPA for approval.

We believe that that cas e was wrongly decided, and its holding should not be incorporated into national rules. Under that Court’s holding, we are concerned that any part of a State’s 303(d) listing process will have to be submitted for EPA approval as a water quality standard, if it has the result of moving any waterbody off the list of impaired waters. That ruling is an unwarranted interference with the ability of States to make their own decisions as to how to impl ement their water quality standards, and to

establish their own decision criteria as to wh en a given dataset is adequate to make a determination that a waterbody does not meet those standards. While that ruling may apply in the 11 th Circuit, there is no reason for EP A to extend it nationally by adding new requirements to the WQS Regulation.

The second legal issue disc ussed in the Notice concerns compliance schedules. EPA is considering specifying that State comp liance schedule provisions must be adopted as water quality standards and submitted for EP A approval. As we indicated above with respect to other issues, we do not agree w ith subjecting these State decisions to EPAjudgment. State decisions as to how and when to require compliance with water qualitybased limits are made within the confines of the NPDES permitting process, based on the State’s judgment as to how their standards should be implemented. EPA should not be

able to tell States how to make those decisions.

EPA appears to believe that this new requirement for EPA approval of State compliance schedule provisions is supported by the Star-Kist Caribe decision ( In the Matter of Star-Kist Caribe, Inc., 3 EAD 172 (April 16, 1990), since that ruling is cited in the Notice. However, the Star-Kist Caribe decision makes it clear that decisions as to standards implemen tation, such as the issuance ofDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 8

compliance schedules, are up to the States to make – not EPA. Compliance schedules are allowed, according to that deci sion, “when the water quality st andard itself (or the State’s implementing regulations) can be fairly construed as authorizing a schedule of compliance.” Thus, the State does not have to put its compliance schedule provisions into the standard itself; those provisions can be in the State’s implementing regulations, which are not standards and therefore do not need to be submitted to EPA for approval. Moreover, according to Star-Kist Caribe , all that is needed in th e standard or regulations

is the clear indication that the State is au thorizing the use of compliance schedules; details, such as time limits or any other restrictions on compliance schedules, are not covered by the Star-Kist Caribe requirement, and are therefor e within the province of the State, subject to compliance with the Clean Wa ter Act. EPA has no authority to require that a State’s detailed compliance schedule provisions be submitted to the Agency for its approval.

The final legal issue cited in the Notice relates to public participation. EPA suggests that it could clarify that States must, when submitting new or revised water quality standards to EPA, include records of public participation that has occurred at the State level, including public comments and St ate responses. We agree that those records should be submitted with any triennial review package. We want to caution, however, that receiving these records should not re lieve EPA from its obligation to accept and consider public input on its own. Under cu rrent practices, EPA takes comment when it decides to disapprove State standards submi ssions, but it does not take comment – or even notify the public in any way – when it deci des to approve a State submittal. It is not sufficient to simply rely on the State’s public process, since the State may have made changes to the standards in its final submitta l that no party will have reviewed, much less

commented on. So as a basic matter of Ad ministrative Procedure Act compliance, EPA needs to develop and implement a procedure whereby it can accept and consider public input in reviewing and approving State water quality standards. If States have to be open to public participation, then so should EPA.

VIII. CONCLUSION

The FWQC appreciates the opportunity to submit these comments on the Notice. Please feel free to call or e-mail if you have any questions, or if you would like any additional information concerning the issues raised in these comments.

Fredric P. Andes

CoordinatorDocket No. EPA-HQ-OW-2010-0606 September 17, 2010 Page 9

Cc: Peter Silva, EPA Ephraim King, EPA Jim Laity, OMB