Basic Standards Implementation Work Group

April 19, 2004
Meeting Summary

Paul Frohardt reviewed the agenda. Paul also noted that a briefing for the Water Quality Control Commission has been scheduled for May 10 and that he would like to discuss that briefing in addition to the other agenda items.

Organic Chemical Standards

Paul Frohardt reported that a new notice will be filed setting a rulemaking hearing (RMH) for the groundwater and surface water standards for organic chemicals for September. All parties that requested party status for the previously scheduled May RMH will automatically be included as parties for the September RMH. Any additional parties will also be able to request party status for the September hearing. The work group then discussed Discussion Draft #2 (a copy of Discussion Draft #2 is included as Attachment 1) of the Division's proposed approach concerning standards for organic chemicals that have an MCL. This is a refinement of the previously discussed proposal that would create a range of standards for those chemicals with an MCL that would include the human-health based calculation and the MCL - with the MCL being used to determine point source permit limits and stream attainment for 303(d) list purposes. Most of the discussion surrounded the proposed language for Regulation #41 for groundwater. Gene Riordan questioned whether or not "pollution that occurred" referred to the actual release of the contaminant and how a plume migrating from the site of a release would be handled. Dave Merritt raised similar concerns regarding the need to clarify the language. Sarah Johnson responded that it was the Division's intent to refer to the date of release.

Some version of this language will have to be included in the Division's proposal that will be compiled by the end of April. While there will still be opportunities to refine the language before the September RMH, Paul Frohardt questioned whether there was a need for additional discussion of this topic by the full Basic Standards Work Group. Any additional comments on the draft language should be provided to Sarah Johnson (sarah.Johnson@state.co.us). If any work group participants would like to add this topic to the agenda for a future meeting, they should contact Paul and request that it be added to an agenda.

The organic chemical RMH is scheduled for 1:30 on September 13. Proponents Prehearing Statements are due July 8. Responsive Prehearing Statements are due August 3, and Rebuttals are due September 1. The Prehearing Conference will be held August 10.

Kemp Will asked if there would be changes in the Division's proposal. Greg Naugle clarified that the calculated criteria for 6 chemicals will change and an additional chemical will be included.

Aquatic Life Pilot Projects

Paul Frohardt distributed the Division's most current draft of the Pilot Project Study Requirements and Selection Criteria. Paul also reviewed a proposal to add language to the Basic Standards to allow site-specific use classifications, which would allow pilot projects to go forward. Melinda Kassen questioned why the use classification would change prior to completion of the pilot project. Katie Fendel agreed with Melinda but went on to state that she understood that there would be a temporary modification to the use classification during the time period of the pilot project.

There was extensive discussion of various participant's understanding of the timing and process for completing pilot projects. It was the Division's understanding that no changes to site-specific uses or standards would be made until a pilot project was complete. Melinda Kassen questioned who would make the decision regarding selection of pilot projects. Paul Frohardt responded he assumed the Commission would select pilot projects. Bob McConnell described the Division's pilot project selection criteria as guidance on the general design of a pilot project study. It is expected that interested parties would address the items in the selection criteria in proposing a pilot project to the Division.

There seems to be a real difference of opinion between those that feel that pilot projects should be open-ended studies versus studies specifically geared to the Division's strawman aquatic life use classification system.

Steve Canton suggested making the regulatory language change to allow site-specific use classifications independent of any future, overall change in the aquatic life use classification system. Melinda Kassen suggested that allowing site-specific use classifications before the State has defined expected condition is a lose-lose proposition for the environment. Paul Frohardt questioned how we gain experience with site-specific uses in the interim. Tad Foster added that he was concerned that any attempt to define pilot project criteria might inadvertently limit the ability to develop site-specific standards.

Paul Frohardt questioned what the outcome would be if we don't authorize site-specific uses. How do we improve our ability to determine if uses are being met? For example, there is nothing today that provides direction on how to determine if an aquatic life use is attained or not.

Bob McConnell raised the issue of defining expected condition. He asked that the concept of expected condition be placed on a future agenda of the Basic Standards Work Group for July 26.

Sarah Johnson asked that the Work Group spend some time discussing items 6-13, which are implementation issues. These items are meant to identify items in the beginning with a clear understanding to avoid disagreements and confusion at a later date, especially during permit development. Work Group participants expressed no particular concerns with these implementation items.

There was some discussion of when a Use Attainability Analysis is needed. Barbara Biggs reiterated her belief that if an aquatic life use is being refined – not eliminated – and water quality standards are simply being recalculated to better reflect the refined use, no UAA should be needed. She pointed to Arizona’s Effluent Dependent Waters and Warm Water Aquatic Life use classifications – which were approved by Region 9 without a UAA – as examples. Dave Moon responded that he believes the regulations are very clear on this point – that whenever a refined use is adopted with less restrictive standards, a UAA is needed. Dave Moon went on to say that there is a significant amount of flexibility regarding what constitutes a UAA but that, bottom line, a sound scientific case had to be built supporting the proposed standards as protective of the aquatic life use.

The Division will take the comments from today and develop a revised pilot project criteria document. The Division also believes the document needs more specific detail concerning other aspects of a pilot project. The revised version of the document will be discussed at the June 9 work group meeting. It is expected that more detailed guidance regarding aquatic life pilot projects will be discussed at the September 27 work group meeting.

Net Environmental Benefit

Paul Frohardt reviewed the concept of net environmental benefit in effluent dependent and/or dominated waters where increasingly stringent stream standards may result in a point source eliminating its discharge. Paul described a workshop sponsored by the Western States Water Council that included four case studies from different states that had aspects of the net environmental benefit concept. The conclusion of this workshop was a decision that stakeholders would develop a set of questions that would be posed to EPA with the goal of identifying those issues where there is clear CWA direction, other areas where the State's have clear flexibiliy, and finally those areas that lie in the gray area in between. At the present time a sub-group of the participants have identified five categories of questions that, when finalized, will be sent to EPA for response. Because of this ongoing process, Mark Pifher has suggested it would be appropriate to delay the discussion of Net Environmental Benefit until the August 12 work group meeting.

Paul Frohardt briefed the work group on the discussions of the subcommittee addressing type (iii) temporary modifications. This issue was raised by EPA. The subcommittee met and discussed EPA's concerns and a number of proposals to address those concerns. After much discussion, it was decided that no changes will be proposed at this time.

The Work Group then discussed the May 10 briefing of the Commission on the progress of the Work Group. It was agreed that Paul Frohardt would prepare a memo summarizing the Group’s efforts to date and agenda for future discussion. It was also agreed that Paul would provide the briefing to the Commission. Work Group members are encouraged to attend the briefing.

Attachment 1

Discussion Draft #2

Statewide Standards OptionMarch 26, 2004

 

Regulation #31

Water Supply

Chemical x: 0.02 to 10.0*

* Whenever a range of standards is listed and referenced to this footnote, the first number in the range is a strictly health-based value, based on the Commission’s established methodology for human health-based standards. The second number in the range is a maximum contaminant level, established under the federal Safe Drinking Water Act, that has been determined to be an acceptable level of this chemical in public water supplies, taking treatability and laboratory detection limits into account. Control requirements, such as discharge permit effluent limitations, shall be established using the first number in the range as the ambient water quality target, written to attain a level of ambient water quality that is as close to the first number in the range as feasible, provided that no effluent limitation shall require an "end-of-pipe" discharge level more restrictive than the second number in the range. Water bodies will be considered in attainment of this standard, and not included on the Section 303(d) List, so long as the existing ambient quality does not exceed the second number in the range.

Regulation #41 Water Supply

Chemical x: 0.02 to 10.0*

• Whenever a range of standards is listed and referenced to this footnote, the first number in the range is a strictly health-based value, based on the Commission’s established methodology for human health-based standards. The second number in the range is a maximum contaminant level, established under the federal Safe Drinking Water Act, that has been determined to be an acceptable level of this chemical in public water supplies, taking treatability and laboratory detection limits into account. The Commission intends that control requirements for this chemical be implemented to attain a level of ambient water quality that is equal to or better than as close to the first number in the range as feasible, provided that where existing ground water contamination except as follows:
• Where ground water contamination resulting from pollution that occurred prior to September 14, 2004 exceeds the first number in the range, exceeded the second number in the range as of September 14, 2004, clean-up levels shall be no more restrictive than the second number in the range or that level of ground water quality resulting from this past contamination, whichever is more protective, unless a more restrictive standard is established as the result of a site-specific rulemaking hearing. [Further proviso for cases where clean-up standards have already been established?]
• Wherever the Commission has adopted alternative, site-specific standards for the chemical, the site-specific standards shall apply instead of these statewide standards.

For sites for which clean-up standards have been established prior to September 14, 2004, the Commission does not intend the adoption of this range of standards to result in changes to the required clean-up, unless such change is mandated by the implementing agency.