Focusing the Right Regulatory Approaches on Surface Water Source Control at Sediment Sites using Portland Harbor as case study Joan P. Snyder, Esq. Stoel Rives LLP Attorneys at Law For Presentation at: Eighth International Conference on Remediation and Management of Contaminated Sediments Platform Session D8, Source Identification and Control Abstract #464 1
Portland Harbor Superfund Site Portland, Oregon Listed on National Priorities List in 2000; Draft Feasibility Study undergoing EPA review; Record of Decision expected 2017 11-mile stretch of Willamette River Largely in zoned industrial sanctuary EPA is lead for in-water; Oregon Department of Environmental Quality (ODEQ) is lead for upland source control 2
Regulatory Toolbox to address Surface Water Contamination at CERCLA sediment site CERCLA authorities State cleanup law authorities Both implemented through 2005 EPA/DEQ Joint Source Control Strategy (JSCS) EPA/State Clean Water Act (CWA) Authorities NPDES permits Total Maximum Daily Loads (TMDLs) EPA and State Safe Drinking Water Act and Groundwater authorities Other: CWA Revolving Fund, various Toxics Reduction efforts 3
Problem Statement Which tools can we legally apply? How do we focus them? 4
Problem statement corollary Regulatory Programs have different focuses, so which are best when? E.g. focus on either individual sites or collective discharges, differing spatial and temporal scales, different Chemicals Of Concern. Cleanup Authorities PCBs, dioxin/furans, DDX, PAHs National Pollutant Discharge Elimination System (NPDES) permits TMDLs 5
Problem statement corollary complexity of contributions to surface water concentrations How do we focus on those most important to sediment sites? In-site stormwater, process water and municipal wastewater sources Unpermitted Industrial permits General Individual MS-4 municipal permits Publicly Owned Treatment Works (POTW) permits Other in-site sources contributing to surface water Groundwater Riverbank Erosion Overwater Upstream sources 6 All of above
FOCUSING JUST ON STORMWATER CONTROL.... 7
Legal limitations on CERCLA authority CERCLA 107(j) ( federal permit shield ): Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section. CERCLA 101(10): The term federally permitted release means (A) discharges in compliance with a [NPDES permit], [or] (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a [NPDES permit] and subject to a condition of such permit, [or] (C) continuous or anticipated intermittent discharges from a point source, identified in a [NPDES permit] or permit application, which are caused by events occurring within the scope of relevant operating or treatment systems... 8
Similar Limitations under State Cleanup Laws, with possible exceptions State Cleanup rules/practices generally allow state agency to address a specific upland source, but not the NPDES-permitted stormwater discharge itself Oregon has a specific exception: OAR 340-122-030 (2) Conditional Exemption of Permitted Releases. These rules do not apply to permitted or authorized releases of hazardous substances, unless the Director determines that application of these rules might be necessary in order to protect public health, safety or welfare, or the environment. These rules may be applied to the deposition, accumulation, or migration resulting from otherwise permitted or authorized releases. 9
Oregon Source Control approach 10
Decision Tool, first steps 1. Limit focus to site-wide and area specific sediment Chemicals Of Concern (COCs) Ultimately, the site Remediation Goals In Portland Harbor, DEQ currently using conservative list from Remedial Investigation Report of elevated COCs in each area of potential concern 2. For each upland source, focus on the site COCs (per EPA/DEQ Joint Source Control Strategy, 2005) 11
Decision Tool, next steps 3. Initially screen against conservative Screening Level Values (SLVs) (per EPA/DEQ Joint Source Control Strategy, 2005) --Based on Water Quality Standards, MCLs, Tap Water PRGs, Oakridge Tier II Eco-risk screening concentration values 4. Determine whether the stormwater source is typical for industrial dischargers. If NO, use CERCLA or State Cleanup Authorities to identify the contributing upland source and require remediation If YES, and if covered by NPDES permit, use NPDES permit authorities, which could include tightening of general permit for all dischargers 12
Decision Tool, summary question Is this a source that only needs to be controlled at select individual sites, or is it something that needs to be controlled for all dischargers in the Site? i.e., Discrete elevated upland soil contamination being transported in stormwater at one site => Cleanup program General industrial-level contaminant discharges, e.g. lower level PCBs in industrial, municipal and transportation stormwater => NPDES program and, if necessary, TMDL program HOW to decide.... 13
ODEQ Tool for Determining whether Stormwater Discharge is Typical 14
Lead Portland Harbor Knee of Curve 1200Z benchmark 40 ug/l (total) JSCS SLV 0.54 ug/l (dissolved) 15
Parameter Specific Comparison: Lead CWA Program: 1200-Z NPDES Cleanup Program: Portland Harbor JSCS Pb 40 ug/l (total) benchmark 0.54 ug/l (dissolved) Screening Level Value 16
Lead at 1200Z Permit Level Goal: Protecting in-stream beneficial uses, focused on water column exposure pathways. Benchmark of 40 ug/l total lead is risk based based on model to predict end-of-pipe concentration that has only 10% probability of exceeding in-stream aquatic chronic water quality criteria of 0.54 ug/l dissolved lead 17
Lead conclusions For facilities with NPDES permits, EPA has no CERCLA authority to require further control of the discharge itself absent violation of permit, because lead is covered by conditions of permit. If lead concentration exceeds the 40 ug/l NPDES permit benchmark, the facility will be required to implement Best Management Practices or provide treatment to meet the benchmark. If discharges at or below permit benchmark cause recontamination, DEQ will tighten NPDES permit benchmark in next permit (5 year permit cycle) for Portland Harbor sources (e.g. Lower Willamette River) In Oregon, could address under cleanup laws using exception to permit shield. DEQ should ensure that MS-4 permittees (which includes transportation corridors) and other municipal discharges (e.g. sanitary sewer overflows under Publicly Owned Treatment Work permit) similarly meet at least a 40 ug/l benchmark. 18
Parameter Specific Comparison: PCBs CWA Program: 1200-Z NPDES Cleanup Program: Portland Harbor JSCS Total PCBs 2 ug/l impairment reference concentration for discharges into 303(d) listed water bodies (such as Portland Harbor) 0.000064 ug/l (64 pg/l) Screening Level Value (which is instream fish consumption-based WQC) 19
PCBs Portland Harbor Knee of Curve 1200Z 303(d) ref. conc. 2 ug/l JSCS SLV 0.000064 20 ug/l
PCB conclusions PCBs are impairment pollutant monitored in all Portland Harbor NPDES stormwater permits so EPA has no CERCLA authority absent violation of permit. The 2 ug/l reference concentration in the NPDES permit is not a riskbased criteria, so achieving this level is not dispositive as to whether it should be controlled further. Knee of the Curve allows ODEQ to identify atypical industrial sources and focus its cleanup law authority on those sites (to identify and remediate upland sources). 21
PCB conclusions However, whether sediment recontamination will occur is not solely function of concentration (e.g. also function of volume, flow rate, hydrodynamics, dissolved/tss fractions). ODEQ beginning to work with simplified SEDCAM model to assess likelihood of recontamination on site-specific basis, where necessary. MS-4 and other municipal discharges (which include transportation corridors) also need to be subject to same process to determine what controls are necessary to prevent unacceptable risk from deposition. Portland Harbor (or, best yet, Lower Willamette River) may need PCB permit benchmark in next NPDES stormwater permit revision (2017) If PCB recontamination occurs, Oregon may need PCB TMDL for Lower Willamette (not just for Portland Harbor) 22
Summary Decision Tools Allow to use best tool for the job Have tool to determine whether a discharge is typical or atypical Atypical discharges addressed under Cleanup Laws Typical discharges generally addressed as group under CWA NPDES permits First, enforcing compliance with permit throughout Harbor If necessary, tightening permit benchmarks in next permit For CWA 303(d) listed parameters, TMDL could be established if goals not met. 23