MPCA Citizens Board. Michael Sandusky Director Environmental Analysis and Outcomes Division DEPARTMENT : POLLUTION CONTROL AGENCY

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1 DEPARTMENT : POLLUTION CONTROL AGENCY DATE : November 14, 2008 SF (4/86) STATE OF MINNESOTA Office Memorandum TO : FROM : MPCA Citizens Board Michael Sandusky Director Environmental Analysis and Outcomes Division PHONE : SUBJECT : Information Item: Triennial Water Quality Rules Amendments (2011) The Minnesota Pollution Control Agency (MPCA) staff is beginning the triennial review process, which will include amendments to the state water quality standards, and is informing the MPCA Citizens Board (Board) of the proposed scope of that rulemaking. Requirements for a Triennial review The MPCA is required under the Clean Water Act to triennially review, and amend as necessary, the state water quality standards. The process of reviewing the water standards involves an ongoing review of water quality data and scientific information. In the triennial review process, the MPCA formalizes that review of the available information in order to justify the establishment or revision of a standard. The decision to proceed to rulemaking depends on the adequacy of the scientific information to support that standard. In the 2011 triennial review, the MPCA has made a determination that there is a sound basis to proceed with the scope being proposed in the triennial rulemaking. The last triennial review was approved by the U.S. Environmental Protection Agency (U.S. EPA) in May, In order to continue with the triennial schedule, the next set of rule revisions must be adopted by the state and sent for review and final approval to U.S. EPA by March, The rules under consideration are Minn. R. chs (Waters of the State) and 7052 (Lake Superior Basin Water Standards). A key component of the federal requirements for the triennial review is for the State to provide meaningful public participation and opportunity for comment. The Minnesota Administrative Procedures Act, which governs the state rulemaking process, also requires extensive public participation, as well as demonstration of the need for and reasonableness of the proposed revisions. Scoping the Triennial Revisions To initiate the rulemaking process, staff has published in the State Register a Request for Comment (Request) identifying a list of proposed areas to be amended. This Request, which included information about a series of public meetings, was also distributed by mail and electronically, to parties who have an interest in the MPCA s water programs. It was also posted on the MPCA s website. Two of the three public meetings were held in a videoconference format connecting MPCA Regional Offices to encourage wider participation throughout the state and one was held in the MPCA s Board Room in St. Paul. The comment period ended September 26 th, 2008 and the MPCA received a number of comments. In general, the comments related to the topics proposed by MPCA and either supported the item or urged the use of adequate science and reasonable caution TDD (for hearing and speech impaired only): Printed on recycled paper containing at least 10% fibers from paper recycled by consumers

2 MPCA Citizens Board Page 2 in the development of the standards. Only one outside party provided recommendations for pollutants MPCA should adopt as new Class 2 standards for toxics from the U.S. EPA s 304 (a) criteria list or MPCA-derived criteria. The Request for Comment identified the following areas for consideration in this triennial review rulemaking, with additions made since the Request was published indicated in bold: A. Addition of eutrophication standards for river and stream ecosystems; B. Addition of new standards for specific surface water toxic pollutants; the pollutants may include the adoption of three priority U. S. EPA 304(a) Ambient Water Quality Criteria for protection of beneficial uses of surface waters (nonylphenol and related compounds and chloride-if EPA publishes a criteria) and MPCA-derived Class 2 water quality criteria for other pollutants of concern in Minnesota s surface waters (nitrate and dimethenamide and chloracetamide (two corn herbicides) degradates); C. Review and possible revision of use classifications for specific water bodies; D. Revise the existing turbidity standard; E. Revise the human health-based water quality chronic standards needed to maintain consistency with the Minnesota Department of Health s Health Risk Limits in Minn. R. ch. 4717, which is currently under revision; and F. Review and possibly revise existing Class 3 (Industrial Consumption) and Class 4 (Agriculture and Wildlife) water use standards. It is possible, as a result of further discussions with U.S.EPA, that change regarding the listed items will occur to the proposed scope of the triennial rulemaking prior to publication in the State Register. Further details about each of these areas of revision will be provided in the presentation to the Board. Future Steps MPCA staff intends to publish a second Request for Comments to again notify potentially interested parties that the items identified above are the scope of this triennial review rulemaking and also to request data and information relevant to those topics. Rule amendments and a Statement of Need and Reasonableness in support of the amendments will be drafted in 2009 and additional public input will be sought. MPCA staff expects that additional issue-specific public participation activities will be conducted as the rulemaking process advances. MPCA staff plan to hold public hearings in summer 2010 when the rules are proposed and that the rules will be adopted by the state and transmitted to U.S. EPA for approval by March, MJS:cmbg Attachments

3 MPCA Citizens Board Meeting: Triennial Water Quality Standards Rules Amendments 2011 Angela Preimesberger, Environmental Analysis and Outcomes Division November 25, 2008

4 Water Quality Rules Team Water Quality Standards Unit Mark Tomasek, Supervisor Gerald Blaha, Howard Markus, Phil Monson, and Angela Preimesberger Lakes & Streams Monitoring Unit Steven Heiskary Water & Land Rules & Special Projects Unit Carol Nankivel Attorney General, Robert Roche

5 Information Item Presentation Overview of the Triennial Review process Scoping the Triennial Review Priorities list by the Water Quality Rules Team Request for Comments in the State Register Solicitation of priority topics at MPCA, Region 5 EPA, and other state agencies Publishing the final Scope (5 min.)

6 Triennial Water Quality Rules Amendments: Overview Review covers Minnesota s two water quality rules, Minn. R. chs and 7052; The Clean Water Act (CWA) requires public review and revisions every three year, hence the Triennial Water Quality Standards Rules Amendments. Amending water quality standards in state rules has to adhere to requirements related to the CWA and in the Minnesota Administrative Procedures Act. Meeting these requirements centers on meaningful public participation and demonstration of the need and reasonableness of the revisions.

7 Scoping the Triennial Revisions Water Quality Rules Team has a prioritized list of items for revision; CWA requires public comment on the entire content of a state s water quality standards every three years; An open written comment period and three public meetings were announced in the July 28, 2008 State Register and through water quality standards mailing lists. The comment period ended September 26 th.

8 Scoping the Triennial Revisions Public meetings were held in St. Paul and the Regional Offices via video conference; Attendees represented lake associations, business, farm groups, and other state agencies. Written comments received added input from an even broader section of interest groups: environmental groups, concerned citizens, and local governments. In general, the comments related to the topics proposed by MPCA and either supported the item or urged the use of adequate science and reasonable caution in the development of the standards.

9 Scoping the Triennial Revisions The State Register notice listed the following items for proposed revision: Addition of: Eutrophication standards for rivers, and Two or three new standards for surface water toxic pollutants (i.e. pesticides, nonylphenol, or other); Review of use classifications; Revisions to: Class 3 & 4: Industrial use, Agricultural use standards, Turbidity standard, and Algorithms for human health-based standards.

10 Proposed Revisions: Eutrophication Standards for Rivers Highest priority for this triennial water quality rules revision; Joint effort between Water Monitoring Section & Water Assessment & Environmental Reporting Section. Monitoring data to build relationships between excess algae (chlorophyll) and nutrients, as well as, fish and invertebrate metrics. Heiskary and Markus already have published reports (Biological Monitoring Web page). # of taxa Total invertebrate taxa vs. TP. 25th % tile for total taxa noted. R 2 = TP ug/l 8

11 Proposed Revisions: Aquatic Toxicity/Human Health-based Standards Add new Class 2 standards: U.S. EPA National Ambient Water Quality Criteria: nonylphenol (and related compounds-mpca review) and chloride (if published); MPCA derived standards for pesticides or other pollutants of concern: nitrate and dimethenamid and chloracetamide corn herbicide degradates. Final decisions were based on occurrence in surface waters near criteria/benchmarks, availability of data, and staff resources. 9

12 Potential Revisions: Class 3 and 4 Numeric Standards Class 3 Industrial Consumption Includes standards for: Chlorides, Hardness, and ph. Note: EPA has initiated review of chlorides for aquatic tox. (Class 2) Class 4 Agriculture and Wildlife Class 4A Irrigation-based standards include: Bicarbonates, Boron, ph, Specific Conductance, Total Dissolved Salts, Sodium, Sulfates, and Radioactive Materials. Class 4B Wildlife and Livestock Watering cover: Total Salinity, ph, Radioactive Materials, and Toxic substances. These standards have remained essentially the same since first adopted in Technical review currently underway by the University of Minnesota. 10

13 Proposed Revisions: Turbidity Standard Generally, listed state-wide standard of 25 NTU. Measure of how light penetrates water; In excess, can stress aquatic organisms, such as fish and mayflies. Standard as written poses problems when addressing impairments in the TMDL (Total Maximum Daily Load) program: Surrogate for aquatic organism health; and Not in units of concentrations, which is essential for developing pollutant reduction goals. Being evaluated for appropriateness and may lead to modifications or completely new criteria. 11

14 Proposed Revisions: Update Human Health-based Methods Additional protections for infants and children: MN Dept. of Health amendments to Health Risk Limits (HRLs) Rule: Drinking Water - Higher intake rates; Early developmental effects; Greater Cancer potency for critical exposure early in life. Need consistency in water quality standards: Review of children s fish consumption rate. 12

15 Plans for Final Scope Based on comments received, MPCA plans to include all the items proposed in the July State Register notice for revision; Additions for the next notice include listings of Class 7 use classification reviews and final pollutant list for new Class 2 standards. MPCA will be requesting any data or information pertaining to the final items in the next notice.

16 Schedule Fall 2008 Finalize scope of triennial revisions (publish in State Register); Begin technical work on supportive documentation and draft rules Publish draft rule language. Provide opportunities to comment Hold public hearings and other APA process steps. Goal is to have final rule by May

17 More information: MPCA Home: MPCA Triennial Water Quality Rule Revision MPCA Water Quality Standards general info. MPCA Biological Monitoring Streams: Algae Monitoring MDH Health Risk Limit (HRL) Rule