By Jack C. Bender, Attorney, Bingham Greenebaum Doll LLP
On September 4, 2013, EPA proposed revisions to its federal water quality standards (WQS) regulation on several key issues. The proposed rule would address the requirements for state water quality programs with respect to designated uses, triennial reviews, antidegradation, variances to water quality standards, and compliance schedules. The current core of the EPA WQS regulation has been in place since 1983. EPA’s proposed revisions would impose new restrictions on state WQS in these areas. State WQS are subject to EPA review and approval, and are to be reviewed and updated at least once every three years as part of the required triennial review under 40 CFR 131.20.
EPA is proposing to amend its regulation at 40 CFR 131.10(g) to provide that where a state adopts revised WQS based upon a Use Attainability Analysis (UAA) to remove a designated use, the state must adopt the highest attainable use as the replacement standard. The highest attainable use would be defined as the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in the Clean Water Act and attainable, as determined using best available data and information through the UAA. Under EPA’s current interpretation of the UAA regulation, all uses specified in the Act are presumed attainable unless a state demonstrates through a consideration of the six UAA factors specified in 40 CFR 131.10(g) that the uses are not attainable.
By way of example, if a state determines through a UAA process that water quality to support a particular class of aquatic life use is not attainable due to one of the six factors (e.g., naturally occurring pollutants), the aquatic life use designation and applicable criteria to support that use may not be removed where less sensitive aquatic organisms are able to survive under the current and/or future attainable conditions. Thus, the EPA revisions would not allow wholesale elimination of designated uses through the UAA process where partial support of the use could still be attained and maintained. Rather, a partial designated use and the water quality criteria necessary to support that partial use would have to be established in the state WQS.
EPA is proposing to amend its triennial review provisions at 40 CFR 131.20 to clarify that a state is required to re-examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of new or updated criteria recommendations. EPA’s concern is that states may retain criteria in their WQS that are viewed by EPA as no longer protective of designated uses for multiple triennial review cycles. This proposed revision could drive further changes, not just in numeric criteria recommendations, but also with respect to listing of pollutants as bioaccumulative contaminants of concern, or other recommended changes in WQS formats and/or restrictions, on a more frequent basis. The irony is that EPA has retained some of its recommended criteria, such as the criteria for selenium, for many years despite the fact that current science shows that such standards are outdated and overly stringent.
Under state antidegradation programs, where a waterbody has water quality that is better than the water quality criteria deemed necessary to fully support existing and designated uses, water quality in such a “high quality” water may not be lowered (i.e., it must be maintained and protected) unless it is demonstrated that lowering water quality, even on a limited basis that still fully protects all uses, is necessary to “accommodate important economic or social development in the area in which the waters are located.” This is called the “Tier 2 review” process.
EPA is proposing to amend several provisions of its antidegradation standard at 40 CFR 130.12 relating to the designation of waters and the Tier 2 implementation requirements. These changes, if adopted, could significantly affect Kentucky’s antidegradation implementation procedures, as well as the scope of waters subject to Tier 2 high quality water review. EPA’s proposed revisions reflect an evolving stringency in the antidegradation program without any guiding parameters or standards in the Clean Water Act itself as to the scope of the program. As EPA notes in the proposed rule, antidegradation was not mentioned in the Clean Water Act until 1987 when Congress included a provision in Section 101 of the Water Quality Act reflecting that effluent limitations from new or expanded discharges needed to be subject to and consistent with the “antidegradation policy established under this Section.” No other statutory direction exists as to antidegradation standards. Thus, EPA’s proposed rule represents a broad assumption of rulemaking authority in the absence of Congressional direction or guidance.
Of most concern to Kentucky, EPA has proposed to clarify that where a state utilizes a waterbody-by-waterbody basis to designate streams as high quality, streams cannot be excluded from Tier 2 high quality review solely because not all the uses specified in the Act are attained. For example, EPA notes that some states have precluded designation of waterbodies as high quality where a waterbody is impaired and does not fully support a current use only for one pollutant parameter. EPA notes that such a means of identifying high quality waters would categorically deny Tier 2 protection to a waterbody that is still of high quality with respect to other uses (e.g., recreation, drinking water) specified in the Act. EPA is proposing that states must undertake a holistic evaluation of such a waterbody to determine if it should remain subject to Tier 2 review for certain uses. Accordingly, where a waterbody is impaired for purposes of primary contact recreation due to bacteria levels, EPA’s view is the waterbody could still be designated as high quality for aquatic life purposes. That interpretation, if adopted, could affect Kentucky’s program, which was previously approved by EPA, and focuses on whether a waterbody meets all designated uses and has water quality sufficient to support all designated uses in order to be considered high quality. EPA’s proposed rule would have no appreciable effect on Indiana’s antidegradation rule, which is already consistent with the proposed rule’s optional approach for determining high quality status of a waterbody on a pollutant-by-pollutant basis.
EPA also seeks to clarify that in making a finding that lowering water quality of a high quality water is necessary to accommodate important economic or social development, an alternative analysis of available technologies that evaluates a range of non-degrading and minimally degrading practicable alternatives must be conducted by the state. EPA notes that in addition to wastewater treatment technologies, the alternatives should evaluate process changes at a manufacturing facility, as well as a reduction in the scale of the project. Such considerations are beyond the scope of treatment technologies and would require a state to become involved in a company’s business plans.
Finally, EPA is proposing to require states to make their antidegradation implementation methods available to the public. This would require states to develop and publish methodologies for antidegradation implementation that would be adopted as part of the state WQS. That would make the implementation methodologies subject to EPA review and approval or disapproval. States have frequently explained and delineated their implementation methodologies in submittals to EPA to support their proposed antidegradation regulations, but to date, EPA has not necessarily required the implementation methodologies to be included in the standards themselves. EPA included in the proposal a list of the implementation methods and issues that would need to be addressed as part of any such state WQS for antidegradation implementation.
Antidegradation requirements for high quality waters are stringent and continue to evolve. As the program has expanded, long-standing exemptions for de minimis and insignificant changes in water quality have themselves been minimized making just about any new or expanded discharge to a high quality water subject to review to ensure the least degrading economically available technology is utilized to minimize lowering of water quality even where all other water quality and technology-based standards mandated by the Clean Water Act are readily met. EPA’s push to expand Tier 2 review to additional waters will serve to further amplify the program’s impact.
At the present time, EPA’s WQS regulation only mentions variances in 40 CFR 131.13, which provides that states may, at their discretion, include policies in their WQS such as those implementing mixing zones, low-flows, and variances. (However, it should be noted that the Great Lakes water quality guidance rule, 40 CFR Part 132, includes guidance on the granting of variances from water quality standards applicable to waters of the Great Lakes in Procedure 2 of Appendix F to Part 132. This procedure contains provision similar to some of those set forth in the EPA’s proposed rule.) Variances are a designated use and criterion that are targeted to a specific pollutant, source, or waterbody segment that reflect the highest attainable water quality condition during a specified period of time. Variances do not change underlying designated uses of the waterbody or the associated water quality criteria, but rather, are intended as a mechanism to provide time for states and stakeholders to implement adaptive management approaches that will improve water quality where a designated use and criterion currently in place are not being met and cannot be met through available treatment technologies. The goal of a variance is to ultimately attain the existing designated use through eventual improvements in technology or economic conditions. EPA considers variances to be environmentally preferable to a designated use change through a UAA.
Under the proposed rule, EPA would adopt regulations that expressly address how a variance must be justified, what is required during the term of a variance, and the duration of a variance. EPA is proposing a set of variance evaluation provisions that are similar to the six factors that must be evaluated to support a designated use change through a UAA. EPA would also require variances to be subject to EPA review and approval or disapproval as they affect current WQS. Variances would need to be reviewed on a triennial basis.
EPA notes that variances that are specific to pollutants and dischargers are the most useful. EPA explained that a variance is different from a permit compliance schedule, which is used where the designated use is deemed currently attainable, but the permittee needs additional time to modify or upgrade treatment facilities in order to meet a first time water quality-based effluent limitation (WQBEL). Under a variance, no known economically achievable solution exists to meet WQS at the time of the variance, but the hope is that ultimately new technology or economic circumstances or other changes would allow the designated use to be met with respect to the specific pollutant and discharges. EPA is also proposing to require that numeric interim requirements be included as a component of any variance, which would reflect the highest attainable use. EPA is proposing that all variances include an expiration date, and that variances be as short as possible, but expire no later than 10 years after the date the state adopts the variance.
Permit-Based Water Quality Standard Compliance Schedules
EPA’s current compliance schedule provisions authorize the permitting authority to provide the permittee additional time to comply with a WQBEL that derives from and complies with the applicable WQS beyond the date of permit issuance. Without a compliance schedule, an NPDES Permit must require the permittee to comply with a newly imposed water quality-based effluent limitation immediately upon permit issuance. EPA is clarifying that in order for states to grant compliance schedules in NPDES Permits for WQBELs, the state WQS must authorize such compliance schedules. This aspect of EPA’s proposed rule will not affect either Kentucky or Indiana’s WQS programs since the rules of both states currently authorize compliance schedules for water quality-based effluent limitations. In fact, Kentucky has adopted EPA’s compliance schedule regulation at 40 CFR 122.47. Indiana’s NPDES rules contain provisions addressing schedules of compliance that are consistent with 40 CFR 122.47 though the federal rule is not replicated verbatim.
Compliance schedules for water quality-based effluent limitations are only available where the WQS at issue was adopted after July 1, 1977. Proposed regulation 40 CFR 131.15 specifies that state regulations authorizing schedules of compliance for WQBELs would be subject to EPA review and approval or disapproval and must be consistent with Clean Water Act Section 502(17) and 40 CFR 122.2 and 122.47. 40 CFR 122.47 provides that compliance schedules shall require compliance with the WQBEL as soon as possible. Generally, a compliance schedule would not be available for a new discharger except where the WQS at issue was adopted after commencement of construction, but less than three years after commencement of the relevant discharge. For compliance schedules that exceed one year, the schedule is to set forth interim requirements and the dates for their achievement.
Final Administrator Determinations
EPA is also proposing revisions to 40 CFR 131.22 to make clear that guidance documents and letters provided to states on concerns related to a state’s water quality regulations are not final EPA determinations for purposes of state program approvals or disapprovals unless signed by the EPA Administrator. These changes appear to be designed to insulate EPA from litigation challenges to informal guidance and letters. EPA states these changes are essential to providing states with feedback and to maintain an open constructive dialogue.
EPA’s proposed revisions to its WQS affect important components of state water quality programs. The proposed changes would broaden the scope and stringency of existing state programs related to antidegradation, variances, and use attainability analyses. Further developments relating to the proposed and final rules will be tracked in future issues of the Environmental Letter.
To view a complete PDF of the July/August 2013 issue of the Environmental Letter, click HERE.