MEMORANDUM. Comments on the Water Quality Control Division s Preliminary Proposal for Revised Statewide Arsenic Standards Rulemaking Hearing.

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1 MEMORANDUM TO: FROM: Water Quality Control Division Gabe Racz, Vranesh and Raisch, LLP DATE: August 17, 2012 RE: Comments on the Water Quality Control Division s Preliminary Proposal for Revised Statewide Arsenic Standards Rulemaking Hearing. I am submitting the following comments on behalf of the Colorado Association of Commerce & Industry (CACI). Because of the short time before the Water Quality Control Commission s scheduled hearing about arsenic standards, we are providing these comments now in order to meet the Division s requested schedule. However, further review and discussion will probably generate additional comments. In general, to refresh the minds of Division Staff regarding EPA s position as stated by Denise Keehner at the recent Water Quality Forum retreat, environmental regulation has to be rational. She also stated that issue resolution will take more time than originally thought because of economic conditions. With that, this standard as proposed is not rational because: 1. The EPA has not determined that the water-supply and fish-consumption arsenic standards have to be lowered to the levels proposed. 2. Maximum treatment technology is extremely costly and unproven. Again, along with the temperature and nutrient standard, Staff continues to ignore economic, social and environmental impacts. Enormous increases in energy consumption resulting in enormous increases in greenhouse gases (GHG) as well as enormous increases in disposal requirements of brine from nano filtration will cost $10 s if not $100s of millions of dollars per treatment facility (10s of thousands per tap). Socially, this impacts Colorado citizens discretionary spending, causes businesses to move elsewhere and detracts from businesses wanting to move to this great state. Loss of business and the people associated with those businesses will result in a loss of revenue to the State. 3. The proposal has no rational basis for departures from the Colorado Water Quality Control Commission (WQCC) policies 96-2 and 98-2 for the watersupply and fish-consumption arsenic standards. These policies have been

2 - 2 - effective in the past so why deviate from them at this time? These policies are in place to provide paths forward to achieving new, rational, regulation within a reasonable period of time. Relative to the time requirement to hear this proposal for adoption in the basic standards as well as the basin specific at the same time is an unprecedented measure to take given the extreme sensitivity of the issue. The time schedule proposed is unacceptable because: 1. There has been no demonstrated urgency for this extreme schedule. The EPA understands that it is necessary to stretch out issue resolution because of economic conditions. 2. Stakeholders do not have time to obtain the necessary data to present rational alternatives to the proposal. More specifically, the following are also of significant concern: 1. Standards must recognize the fact that arsenic is a naturally-occurring metal with no proven wastewater treatment technologies. Arsenic differs significantly from many other substances that affect human health, because it occurs in the environment both frequently and naturally. The Division s stakeholder presentation on July 17 acknowledged that arsenic is the 20 th -most-common element in the earth s crust. At the same time, the Division and all stakeholders agree that there is no technology available to treat arsenic to the levels required by the water+fish standard. The water+fish standard should be changed because of the high treatment costs to meet the current standard, with no resulting environmental benefit. Oregon recognized this policy consideration when that state revised its arsenic standards in 2011: Oregon s current human health criteria for arsenic are not attainable in many Oregon waters, due at least in part to natural sources. Trying to implement criteria that are below natural background levels can result in unreasonable costs to the state and regulated entities without yielding meaningful environmental results such as measurably reduced in-stream concentrations. The human health risks associated with natural arsenic concentrations are not new; they have been present since people have been drinking water and eating fish from Oregon streams, lakes and coastal waters. 1 1 Memorandum from Dick Pederson, Director, Oregon Department of Environmental Quality, to Oregon Environmental Quality Commission, April 5, 2011.

3 - 3 - Colorado s current water quality standards for arsenic include one unattainable standard the water+fish standard. Because arsenic occurs naturally, this standard should not follow Colorado s general policy for human-health-based standards, set out in Commission Policy Also, because many regulated entities could be affected by unattainable permit limits in the near future, there is justification for the somewhat unusual step of revising the standard for all water+fish segments at one hearing. These are good reasons to propose revising the water+fish arsenic standard for all affected segments at the April 2013 hearing. 2. There is no need for immediate changes to water supply and fish consumption arsenic standards. In contrast, there is no reason to depart from established policy and procedure to revise the water supply and fish consumption arsenic standards. Those standards appear attainable in the vast majority of Colorado waters. Like the other substances with human-health-based standards, arsenic can cause human health problems. This fact justifies applying the same policy to arsenic as to other substances, except where the resulting standard is both unattainable and far more stringent than natural background levels. The Division proposes adoption of revisions to the water supply and fish consumption standards on a much faster schedule than Colorado usually follows for metals standards. As the Division knows, the Commission normally considers whether to adopt revisions to the tables in the Basic Standards at the regularly scheduled review hearing for Regulation 31. Then, the Commission decides whether to adopt the Basic Standards as segment-specific standards at the regularly scheduled hearings for each of the basins, Regulations This process provides time for stakeholders to collect samples and gather data about the pollutants of concern in order to guide both statewide and segment-specific Commission policy decisions. At the stakeholder meeting on July 17, the Division stated that the usual process was not appropriate because the Division could not recommend different policy outcomes for the three different exposure pathways water consumption, fish consumption, and the combination of water and fish consumption. However, the Commission routinely accepts different risk levels for water consumption than for fish consumption or combined consumption. There is no reason to change that general policy for arsenic. Policy 96-2 states two situations in which the water supply standards may be higher than the risk-based calculated standard. First, the Commission may base water supply standards on the Safe Drinking Water Act maximum contaminant levels (MCLs) where information is provided which shows that the chemical is pervasive statewide and that costs associated with treatment required to meet concentrations based solely on the protection of public health outweigh the incremental improvements to the health

4 - 4 - of the general population. 2 Second, the Commission will adopt a hybrid MCLG/MCL approach in cases where the DWS/MCLG standard derived using [the risk-based human health equation] is less (more restrictive) than the Federally promulgated MCL. 3 There is no reason to depart from the established policy for establishing the water supply standard for arsenic. The Division said that arsenic is harmful and therefore should be treated differently from other substances. However, by definition, all of the pollutants with human health standards pose risks to human health; otherwise, standards would not be necessary. Arsenic is not the only carcinogen for which the Commission adopted MCL-based standards. This factor does not distinguish arsenic from the other substances with human-health-based water quality standards. 3. Changes to the water supply and fish consumption standards are premature. a. There is not enough time to develop site-specific standards. The Division s proposal would make the arsenic standards significantly more stringent than the current water supply and fish consumption standards. The vast majority of affected entities will not even be able to determine whether site-specific standards are necessary, let alone to develop them, in time for the April 2013 hearing. As the Division pointed out, the Commission will require formal proposals in November, The Division did not tell any stakeholders that it would propose immediately-effective changes to the water supply and fish consumption standards until June 15. Most stakeholders did not become aware of this proposal until some days or weeks after the Division distributed its proposal. b. Many affected entities don t have adequate arsenic data. Many entities have not been collecting arsenic data or only recently began collecting data. Many only have effluent data. The Regulations require adequate supporting data for site-specific standards development, and the Commission and the Division consistently hold regulated entities to this requirement. With essentially no warning before the Division s proposed adoption of revised segment-specific standards, stakeholders have no ability to collect the necessary data. Finally, the proposed standard is very close to the detection and quantification limits for many laboratories; as a result, currently existing data may not be accurate in all instances. c. Clarify 303(d) listing consequences of the proposed changes to the water supply and fish consumption standards. 2 Human Health-Based Water Quality Criteria and Standards, Water Quality Control Commission Policy 96-2, at Id. at 6.

5 - 5 - Preliminarily, it appears there are probably water-supply- and fish-consumptiondesignated segments that exceed the Division s proposed µg/l standard. It is unclear how the hybrid standard would be implemented in a TMDL. Although Regulation 31 states that no effluent limitation shall require an end-of-pipe discharge level more restrictive than the second number in the range. Reg. 31, Table III, footnote 13. Loads calculated in a TMDL could result in lower effluent limitations, despite the fact that there is no available treatment for achieving lower effluent limitations. This Division should address this issue before proposing more stringent standards.. For all of these reasons, the Division should propose changes in April 2013 only to the water+fish arsenic standard. If the Division continues to believe that a broader review of arsenic standards is advisable, it can do so through the standard process for considering revisions to standards. The Water Quality Forum should convene a workgroup, and the Division should develop information to support a decision whether to propose changes to the Basic Standards for the June 2016 hearing. 4. There is not enough information to conclude that 2 µg/l is an attainable arsenic standard. The whitepaper distributed by the Division on June 15 indicates that treatment cannot achieve arsenic effluent concentrations more stringent than 2 µg/l. However, that does not mean that 2 µg/l is generally attainable through wastewater treatment. First, the whitepaper does not contain any information about the effectiveness of arsenic treatment in wastewater. Second, the information about existing concentrations of arsenic in Colorado is spotty at best. Although there is enough information to revise the water+fish standard on at least an interim basis, there is not enough information to change the water supply and fish consumption standards. a. The Division s technology review relied entirely on studies of drinking water treatment, not wastewater treatment. The Division s whitepaper relied entirely upon studies of drinking water treatment. Those studies were limited to technology that is only proven for flow rates significantly lower than many wastewater facilities. Also, the Division admitted that the technologies would not be applicable to domestic wastewater treatment. These studies are inapplicable to wastewater and cannot be used to make standards stricter. b. There is inadequate information about current arsenic concentrations. We understand that the Division has a limited set of data about stream and effluent arsenic concentrations. However, the Division has not distributed the data to the workgroup. The data should be posted for review.

6 - 6 - The overwhelming majority of discharges with arsenic compliance problems caused by the water+fish standard (municipal wastewater, power plants, and construction dewatering) do not add arsenic to the environment. Therefore, there is little reason to impose stricter effluent limitations upon these entities. c. As a result, there is not enough information to consider the factors required by C.R.S (4). Section 204(4) of the Colorado Water Quality Control Act requires the Commission to consider several factors when adopting standards, including 1) availability, practicality, and technical and economic feasibility of treatment techniques; 2) the existing extent of pollution; and 3) whether the pollutant arises from natural sources. 4 Although there is enough information to conclude that 0.02 µg/l arsenic is unattainable, there is not enough to conclude that treatment to 2 µg/l would be economically feasible. And the current extent of arsenic in the water and the contribution of natural sources are also not clear. Therefore, further study is needed before proposing to make the water supply and fish consumption standards more stringent. 5. The Division has not explained the proposed revisions to the fish consumption standard. The Division significantly changed the calculation of the fish consumption standard, but has only provided a single line of explanation in the comments box in the annotated arsenic table values spreadsheet distributed on June 15 and in a footnote in the Division s memorandum. This change requires much greater explanation to allow stakeholders to comment on the Division s proposal. The Division proposes reducing the calculated, risk-based fish consumption standard from 7.6 µg/l to 0.6 µg/l. Based on the spreadsheet that the Division circulated, this change is almost entirely a result of changing the bioconcentration factor ( BCF ) used in the equation from 1 to 14. The explanation states that EPA recommends 14, without further explanation of why this BCF is appropriate for Colorado. Also, the Division has provided no information about the history of the BCF that the Commission used in 2005 or the rationale for proposing to change the BCF now. 6. Compliance statistics The Division requested comments on the compliance statistics. Currently, the water supply standard is expressed as a 30-day average, and is incorporated into permits as a 30-day average effluent limitation. 5 The water+fish and fish consumption standards are 4 C.R.S (4). 5 Reg. 31, Table III.

7 - 7 - currently assessed against the median of all samples, like other standards for total recoverable metals. 6 The health-based standards are calculated based on exposure over a lifetime. Therefore, long-term compliance statistics are appropriate for arsenic. 7. Do not propose changing footnote 14 at the April 2013 hearing. The Division noted that the EPA disapproved footnote 14 to Table III in Regulation 31, which affects the water supply standard for arsenic. Footnote 14 states: (14) The arsenic limit shall be calculated to meet the relevant standard in accordance with the provisions of Section of this regulation unless: a. The permittee provides documentation that a reasonable level of inquiry demonstrates that there is no actual domestic water supply use of the waters in question or of hydrologically connected ground water, or b. The arsenic concentration at the point of intake to the domestic water supply will not exceed the standard as demonstrated through modeling or other scientifically supportable analysis. The Division raised a concern that permits that implement the version of footnote 14 adopted in 2010 may be protested by EPA because they do not implement the federal water quality standard for arsenic. EPA s disapproval of the 2010 revision to footnote 14 means that the version of footnote 14 that was in place before 2010 remains part of Colorado s arsenic standard. EPA approved the previous version of footnote 14. An applicable water quality standard under the Clean Water Act remains the applicable standard until EPA approves a change, deletion, or addition to that water quality standard, or until EPA promulgates a more stringent water quality standard. 7 EPA has not approved or promulgated any revisions to footnote 14, so the prior version remains effective. As a result, the currently-effective version of footnote 14 for purposes of the Clean Water Act simply states, Applies at the point of water supply intake, meaning that the arsenic standard is always assessed at the water supply intake. If the Division applies the more stringent version of the footnote adopted in 2010 when setting effluent limitations, it is unclear what basis EPA would have for a protest. Also, the EPA disapproved a similar footnote to the water supply nitrate standard. The Commission should consider responses to the EPA disapprovals of the nitrate and arsenic footnotes at the same time in order to provide consistency. 6 Section 303(d) Listing Methodology, 2012 Listing Cycle, III.C.1.a C.F.R (e).

8 Stakeholders have not had enough time to comment on the Division s proposal. There has not been enough time to review the Division s proposal. Many stakeholders were not aware, until the Division s June 15 proposal was distributed, that the Division would propose changes to standards applicable to segments that they discharge to. Prior discussions with informal stakeholder groups occurred only among entities concerned about water+fish standards, which apply to a subset of all stream segments. The Division s distribution of its proposal on June 15 was done to a relatively small group of stakeholders who had both become aware of the Division s plans to prepare a proposal regarding water+fish segments and had specifically requested that they receive notifications. Because of the informal nature of the stakeholder process until the Division announced meeting dates in May, many parties had not requested to be added to the list. Also, through no fault of the Division s, the Water Quality Forum website was not available for posting the Division s proposal or providing more general notification. 9. Conclusion and recommendations. Arsenic is a naturally-occurring metal, for which there is little information about effective wastewater treatment. Despite this, the current water+fish arsenic standard is set at 0.02 µg/l. As a result, dischargers are likely to face enormous costs to comply with effluent limitations based on the water+fish standard, without an environmental benefit. In these circumstances, it is appropriate to relax the water+fish standard, using a fast-track process as proposed by the Division. On the other hand, there is no reason to fast-track stricter fish-consumption and watersupply arsenic standards. Any revisions to those standards should be deferred at least until the next regularly-scheduled Basic Standards review by the Commission.