Focusing the Right Regulatory Approaches on Surface Water Source - - PowerPoint PPT Presentation

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

1

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

Wednesday, January 14, 2015

Focusing the Right Regulatory Approaches on Surface Water Source Control at Sediment Sites

—using Portland Harbor as case study

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

2

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

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

3

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

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

4

Problem Statement

• Which tools can we legally

apply?

• How do we focus them?

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

5

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 National Pollutant Discharge Elimination System (NPDES) permits TMDLs

PCBs, dioxin/furans, DDX, PAHs

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

6

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

– All of above

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

7

FOCUSING JUST ON STORMWATER

CONTROL . . . .

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

8

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 . . .”

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

9

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.”

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

10

Oregon Source Control approach

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

11

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)

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

12

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

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

13

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 . . . .

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

14

ODEQ Tool for Determining whether Stormwater Discharge is Typical

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

15

Lead—Portland Harbor “Knee of Curve”

JSCS SLV 0.54 ug/l (dissolved) 1200Z benchmark 40 ug/l (total)

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

16

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

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

17

Lead at 1200Z Permit Level

• Goal: Protecting in-stream beneficial uses, focused
• n 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

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

18

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.

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

19

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 in- stream fish consumption-based WQC)

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

20

PCBs—Portland Harbor “Knee of Curve”

JSCS SLV 0.000064 ug/l

1200Z 303(d) ref. conc. 2 ug/l

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

21

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 risk- based 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).

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

22

PCB conclusions

• However, whether sediment recontamination will occur is not solely function
• f 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)

Focusing the Right Regulatory Approaches

• n Surface Water Source Control at Sediment Sites

Wednesday, January 14, 2015

23

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.