[PDF] - Workshop H Water Quality Standards: r Quality Standards: Ne New PDF Document

SLIDE 1

Workshop H

Water Quality Standards: r Quality Standards: Ne New & Proposed R w & Proposed Rules, P ules, Policies & licies & Regulations that Could Impact y gulations that Could Impact your ur NPDES P NPDES Permit rmit

Wednesda dnesday, July 19, 20 July 19, 2017 2:45 p.m. t 2:45 p.m. to 4:15 p.m. 4:15 p.m.

SLIDE 2

Biographical Information Cheri A. Budzynski, Partner Shumaker, Loop & Kendrick, LLP, 1000 Jackson Street, Toledo, Ohio 43602 419.321.1332 Fax: 419.241.6894 cbudzynski@slk-law.com Cheri A. Budzynski is a partner in the Toledo, Ohio office. Cheri is admitted to practice in Ohio, Florida, the United States Supreme Court, the United States Court of Appeals for the D.C. Circuit, the United States Court of Appeals for the Sixth Circuit, the United States District Court

f Ohio, Northern District; and the United States District Court of Ohio, Southern District.

Since joining Shumaker, she has been involved in a range of environmental regulatory, permitting, and compliance issues that affect the Utility Industry, the Steel/Coke Industry, the Pharmaceutical Industry, and the Ethanol Industry. Cheri has also worked on environmental litigation at both the State and Federal level. A substantial amount of her work is following regulations on both the State and Federal level and preparing comments for various trade

rganizations. She has submitted extensive comments to Ohio EPA, U.S. EPA, and the Ohio

River Valley Water Sanitation Commission. She has also appealed various regulations to the Sixth Circuit Court of Appeals and Ohio’s Environmental Review Appeals Commission. Cheri has also prepared an overview of the major environmental regulations in the United States and European Union, which was presented to the Ministry of Environmental Protection for the People’s Republic of China to aid in the development of glass industry regulations in

China. Cheri has been part of the legal team involved in the application process for a New

Source Review/Prevention of Significant Deterioration permit-to-install for a heat recovery coke facility in Ohio. She has also assisted in permitting Pharmaceutical Facilities and Electric Utility Facilities. Cheri received her law degree from the University of Toledo in 2007, where she also served as Executive Editor of the Law Review and Vice President of the Women Law Students’

Association. Cheri’s comment was published in the Fall 2006 edition of The University of

Toledo Law Review. Cheri has been recognized as an Ohio Rising Star, Environmental Law, by Super Lawyers magazine, 2014 – 2017. Ashley Ward, NPDES Supervisor, Division of Surface Water Ohio EPA, P.O. Box 1049, Columbus, OH 43216-0149 614.644.4852 Fax: 614.644.2745 ashley.ward@epa.ohio.gov Ashley Ward has two Bachelor of Science degrees from The Ohio State University; one in Environmental Science, water specialization and one in Chemical Engineering. Prior to her current position, Ashley worked for the Division of Surface Water Chief in several different programs including enforcement, rules, NPDES and pretreatment. Before working for Ohio EPA, Ashley worked as a Microbiologist in the Research and Development Department of Lexmark.

SLIDE 3

Biographical Information Robin J. Reash, Senior Biologist, Environmental Services - Water Quality American Electric Power, One Riverside Plaza, 22nd Floor, Columbus, Ohio 43215 614.716.1237 Fax: 614.716.1252 rjreash@aep.com Robin J. Reash is a Consulting Environmental Scientist for American Electric Power in Columbus, OH. His principal duties include conducting technical studies for wastewater permit compliance and conducting applied research on the fate and effects of power plant pollutants. His areas of expertise include bioaccumulation and effects assessment of mercury and selenium, thermal biology and effects, and ecotoxicology. Rob served on U.S. EPA’s Science Advisory Board’s Aquatic Life Consultation Panel. He has authored or co-authored 30 articles in peer-reviewed technical journals. Before joining AEP, Mr. Reash was employed as an Environmental Specialist for the Oklahoma Water Resources Board, and was a fisheries intern with the Ohio Environmental Protection

Agency. He is a member of the Society of Environmental Toxicology and Chemistry and in

1992 he served as President of the Ohio Valley Chapter of the Society of Environmental Toxicology and Chemistry. Rob was an external peer-reviewer for U.S. EPA’s draft revised aquatic life criteria for selenium. Rob is Chairman of ORSANCO’s Power Industry Advisory Committee and has experience in leadership roles with the Water Environment Research Foundation, the Utility Water Act Group, and the Electric Power Research Institute.

Mr. Reash received a B.A. degree from Wittenberg University and an M.S. degree from the Ohio

State University. In 1998 Mr. Reash was certified as a Certified Fisheries Professional by the American Fisheries Society. Gary Bauer, Senior Chemical Engineer Jones & Henry Engineers, Ltd., 3103 Executive Parkway, Toledo, Ohio 43606 419.473.9611 Fax: 419.473.8924 gbauer@jheng.com Gary Bauer is a registered professional engineer and the Senior Chemical Engineer at Jones & Henry Engineers in the Toledo, Ohio office. Since joining Jones & Henry, he has been involved with multiple industrial and municipal clients. Projects have involved design and operation of wastewater pretreatment and direct discharge systems, air and water permitting, and industrial environmental compliance audits. Gary has developed numerous storm water and spill prevention plans for both industrial and municipal clients. He has also completed technical reviews of local industrial limits as well as authored and revised pretreatment programs and sewer use ordinances for various municipalities. Gary is actively involved in the Ohio Water Environment Association, which is a non-profit wastewater related organization with nearly 2000 members that provides technical education and training for Ohio water quality professionals. Gary has been the northwest section secretary, pretreatment committee chairman, and is currently serving as the vice-president for the section. Gary received his Bachelor of Science in Chemical Engineering from Tri-State University in Angola, Indiana. During his career, he has been active in the American Society for Quality Control, American Electroplaters and Surface Finishers, and served on the Wood County Local Emergency Planning Commission.

SLIDE 4

Water Quality Standards and Permitting Rules

From Promulgation to Implementation in your Permit Cheri A. Budzynski, Esq.

SLIDE 5

Overview

Understanding the Legal Process of

Promulgating and Implementing Water Quality Standards – Why early stakeholder outreach can impact later permitting – Permitting legal considerations – Permit implementation considerations

SLIDE 6

Ohio Rulemaking Process

ESO Interested Party Review Proposed Rule Filed with JCARR JCARR Hearing Appeal to ERAC

SLIDE 7

Why early involvement can impact later permitting

Ohio EPA’s Rulemaking Process

– Governed by R.C. §119 Administrative Procedures

Requires Public Notice and Comment
Rules are reviewed every 5 years

– Step 1: Early stakeholder outreach: Since 2001, Common Sense Initiative required early input from stakeholder about rule revisions

Pro: Allows stakeholders opportunity to raise early concerns

about standards or permitting issues

Cons: No draft language is providing making it difficult to

provide input

SLIDE 8

Ohio Rulemaking Process

ESO Interested Party Review Proposed Rule Filed with JCARR JCARR Hearing Appeal to ERAC

SLIDE 9

Why early involvement can impact later permitting (cont.)

Ohio EPA’s Rulemaking Process

– Step 2: Interested Party Review

Draft revisions are published for comment
Interested parties may submit comments
Opportunity to alert Ohio EPA regarding

– Technical problems with implementing any proposed changes – Why certain proposed changes are not economically feasible – Problems that may arise during the permitting process

SLIDE 10

Why early involvement can impact later permitting (cont.)

Ohio EPA’s Rulemaking Process

– Step 2: Interested Party Review

Ohio EPA will issue a Response to Comments

– Provides justification for its position – May revise rules in response to comments

Ohio EPA will send Business Impact Analysis to Common

Sense Initiative Office

– If CSIO have recommendations to reduce economic impact on stakeholders, CSIO will send recommendation to Ohio EPA – If 16 days pass without recommendations, Ohio EPA will submit rules to Joint Committee on Agency Rule Review

SLIDE 11

Ohio Rulemaking Process

ESO Interested Party Review Proposed Rule Filed with JCARR JCARR Hearing Appeal to ERAC

SLIDE 12

Why early involvement can impact later permitting (cont.)

Ohio EPA’s Rulemaking Process

– Step 3: Proposed Rules Filed with JCARR

Ohio EPA holds public hearing
Ohio EPA provides opportunity for public comment
Ohio EPA responds to oral and public comment

SLIDE 13

Ohio Rulemaking Process

ESO Interested Party Review Proposed Rule Filed with JCARR JCARR Hearing Appeal to ERAC

SLIDE 14

Why early involvement can impact later permitting (cont.)

Ohio EPA’s Rulemaking Process

– Step 4: JCARR Hearing and Jurisdiction

65 days to review the rule to determine that rules

– Do not exceed the scope of Ohio EPA’s statutory authority – Do not conflict with other rules – Do not conflict with statutory intent – Rulemaking is complete, and – The agency assessed the business impact

SLIDE 15

Ohio Rulemaking Process

ESO Interested Party Review Proposed Rule Filed with JCARR JCARR Hearing Appeal to ERAC

SLIDE 16

Why early involvement can impact later permitting (cont.)

Ohio EPA’s Rulemaking Process

– Step 5: Stakeholders may file an appeal with ERAC

Must have participated during the public comment
Standard: Unlawful or unreasonable
Ohio EPA must promulgate rules through rulemaking if the

rules have a “general and uniform operation” on stakeholders before putting standard or limit in a permit – Fairfield Cty. Bd. of Commrs. v. Nally, 2015-Ohio-991 – Ohio Utility Group v. Nally, ERAC No. 13-256734 et al. (Nov. 27, 2013)

SLIDE 17

Permitting Legal Considerations

Appeals of rules to ERAC does not automatically stay

implementation of the rules

Permitting limits and requirements are based on:

– State water quality standards and other rules – Federal effluent guidelines (if applicable) – Site-specific data – Permittee has an opportunity to provide input to Ohio EPA

Ohio EPA prepares draft permit and factsheet for public

notice and review for 30-days

SLIDE 18

Permitting Legal Considerations

Ohio EPA prepares and issues final permit
Once permit is issued, interested parties may appeal

permit to ERAC within 30 days – Must have provided input on permit to have standing to appeal permit

SLIDE 19

Permit Implementation Considerations

What if limits are either economically or technically

infeasible? – Compliance schedule: Provides time for additional data collection or implementation of permit limits – Variances Ohio Adm.Code 3745-33-07

Permitted may apply for individual variance
Shall not exceed 5 year unless NPDES permit application is submitted for

renewal

Conditions to grant a variance: (1) natural conditions prevent attainment of

WQS; (2) human conditions prevent attainment and cannot be remedied; (3) dams or other water diversions or other physical conditions prevent attainment; (4) controls would result in substantial and widespread economic and social impact

Variances may be renewed

SLIDE 20

US EPA Water Quality Standard Developments: Implications for Ohio’s Regulated Community

Robin J. Reash American Electric Power, Columbus, OH

2017 Environmental Permitting in Ohio Conference

SLIDE 21

Overview

 Updated US EPA water quality criteria  2015 US EPA WQS rulemaking  Implications for OEPA triennial review

SLIDE 22

Updated US EPA Water Quality Criteria (www.epa.gov/wqc)

 Ammonia

Finalized August 2013.
New toxicity data for >30 species; many new

data points for mussels and snails (very NH3 – sensitive).

Site-specific criteria can be developed

(using Recalculation Procedure) based on site biology, but mussel or snail data must be retained unless clear showing that no mollusks are present at site or downstrm.

SLIDE 23

Ammonia (cont.)

Comparison of existing OEPA criteria and revised USEPA criteria (at pH = 7.0 and temperature = 20 °C):

Criterion Existing OEPA criteria (WWH) Revised US EPA criteria Average (OMZA in Ohio) 2.2 mg/L 1.9 mg/L Maximum (OMZM in Ohio) 13.0 mg/L 17.0 mg/L

SLIDE 24

Cadmium

 Revised aquatic life criteria issued by US EPA in

March 2016.

 New toxicity data for 75 species; fish and daphnid

taxa most sensitive. Comparison of existing OEPA criteria and updated EPA criteria (at hardness of 100 mg/L CaCO3):

Criterion Existing OEPA criteria Revised US EPA criteria Average (OMZA) 2.5 µg/L 0.72 µg/L Maximum (OMZM) 4.5 µg/L 1.8 µg/L

SLIDE 25

Selenium

 Like mercury, Se is bioaccumulative.  US EPA began criteria revision in 1998.  Bulk of scientific findings have indicated

that the most important exposure route is through diet, not water.

 Thus, EPA wanted to express the revised

criteria as fish tissue (primary) and water (secondary).

 The revised criteria are complicated.

SLIDE 26

Selenium (cont.)

Final US EPA revised criteria:

Sample type Criterion value Fish – egg/ovary 15.1 mg/kg (dry weight basis) Fish – fillet muscle 11.3 mg/kg Fish – whole body 8.5 mg/kg Water 1.5 µg/L (lakes, reservoirs) 3.1 µg/L (rivers, streams) OEPA OMZA = 5 µg/L

SLIDE 27

Selenium (cont.)

 Due to stringency of water criteria, many entities

will conduct (by necessity) fish tissue studies.

 EPA originally said that fish tissue compliance

trumps water criteria compliance, but in draft criteria implementation documents (issued 12/2016), the agency says that water criteria must be used for NPDES purposes.

 Bottom line: if you have discharge Se levels that

are ~ 3 µg/L or higher, consider conducting fish tissue study.

SLIDE 28

Plot of Whole body Hg vs. Whole body Se, all Fish Combined (r

2 =0.66)

0.2 0.4 0.6 0.8 1 1.2 1.4 1.6 1.8 2 0.5 1 1.5 2 2.5 Hg (LOG10) in Whole Body Fish, ng/g dry wt. Se (LOG10) in Whole Body Fish, mg/kg dry wt.

SLIDE 29

Specific Conductivity (SC)

 2010: EPA issues specific conductivity

“benchmark” values for Appalachian region; applicable to waters dominated by sulfate and biocarbonate ions. Benchmark value: ~300 µmhos/cm.

 Based on presence/absence of stream

invertebrate species.

 Benchmark value rejected by District Court

because no state took formal action to adopt as a WQC.

SLIDE 30

Specific conductivity (cont.)

 December 2016: EPA issues draft field-based

methods to develop specific conductivity criteria.

 Issued draft SC criteria for Ecoregion 70 (includes

SE Ohio) though all data used were from West

Virginia. Average benchmark = 340 µmhos/cm.

 Ohio EPA studies in SE Ohio clearly show

biocriteria attainment at higher SC values.

 Unknown if EPA will issue final guidance.

SLIDE 31

2015 US EPA WQS Rulemaking

 States and tribes must adopt most recent

US EPA 304(a) criteria unless they can adequately explain why alternate criteria are just as protective.

 All compliance schedules in NPDES

permits must be approved by US EPA.

SLIDE 32

Implications for OEPA Triennial Review

 At this time OEPA has not issued early

stakeholder notice of adopting US EPA revised WQC.

 Regulated industry should consider providing

comments to agency on concerns of updated US EPA criteria.

 Potential non-compliance or costly treatment

would be good issues to raise.

SLIDE 33

Questions ?

SLIDE 34

My contact

Rob Reash Principal Environmental Scientist Certified Fisheries Scientist American Electric Power 1 Riverside Plaza Columbus, OH 43215 P: 614-716-1237 rjreash@aep.com

SLIDE 35

Presentation Overview

Surface Water Knowledge Transfer
Rules Update

‐ NPDES rules OAC Chapter 33 ‐ Water Quality Standards Triennial Review

NPDES Updates

SLIDE 36

Knowledge Transfer (NPDES)

Eric Nygaard, NPDES Expert Cole Miller and Chris Monroe

SLIDE 37

Knowledge Transfer (Standards)

Dan Dudley, Standards Expert Audrey Rush

SLIDE 38

Rules: Process Overview

PESO

PRE – External Stakeholder Outreach

ESO

External Stakeholder Outreach
Common Sense Initiative (CSI) Office

IPR

Interested Party Review
Propose to JCARR after CSI  (Original File)
Final file after public hearing if no changes
Ohio EPA Rule Drafting

SLIDE 39

NPDES Rules

Additive reviews
TTO Management Plans
Group 5 Parameters

SLIDE 40

Triennial Review ‐ Selenium

EPA published final

chronic aquatic life criterion July 13, 2016.

Bioaccumulates
Can cause reproductive

impairment, adversely impact juvenile growth and cause mortality.

SLIDE 41

Triennial Review ‐ Selenium

SLIDE 42

Triennial Review ‐ Selenium

Water Column Criteria (µg/L)

Old New Streams 5 3.1 Lakes 5 1.5

Fish Tissue Criteria (mg/kg)

Egg/ovary: 15.1
Whole body: 8.5
Muscle: 11.3
Egg/ovary overrides other

criteria.

SLIDE 43

Triennial Review ‐ Ammonia

EPA published revised

aquatic life criteria for ammonia on August 22, 2013.

New toxicity data

reflecting freshwater mussel and snail sensitivity.

SLIDE 44

Triennial Review ‐ Cadmium

EPA published revised

aquatic life criteria for cadmium in 2016.

New aquatic toxicity

tests.

Hardness based.

SLIDE 45

Triennial Review

Copper
Fluoride
Strontium
Barium
Peracetic Acid

SLIDE 46

Triennial Review‐ Variances

Individual variances must be adopted into

Ohio WQS.

Individual variances need reviewed every 5

years.

Mercury general variance.

SLIDE 47

CWA § 316(b) – Intake Structures

Impingement
Entrainment
Facilities affected
If an NPDES permit will

expire after July 17, 2018 the renewal application must document compliance with these regulations.

SLIDE 48

SB 2 Wastewater Update

(F) This section does not apply to any of the following: … (6) The discharge of sewage, industrial waste, or other wastes into a sewerage system tributary to a treatment

works. Division (F)(6) of this section does not authorize

any discharge into a publicly owned treatment works in violation of a pretreatment program applicable to the publicly owned treatment works or any discharge to a privately owned treatment works in violation of any permit conditions established in accordance with 40 C.F.R. 122.44(m).

SLIDE 49

General Permit Updates

Temporary Discharge Permit
Petroleum Bulk Storage
Hydrostatic Test Water

SLIDE 50

Ohio’s Industrial General Stormwater Permit - 2017

Gary Bauer, P.E. Senior Chemical Engineer Jones & Henry Engineers, Ltd.

SLIDE 51

Ohio General Storm Water Permit for Industrial Dischargers

Ohio’s original permit issued in October 1992
Current permit is the sixth generation: OHR000006
Effective Date: 06/01/2017
Expiration Date: 05/31/2022

SLIDE 52

General Permit does not apply to:

Individual NPDES permit holders
Construction Activity
Bulk Petroleum Stations
Active Landfills
Metal and Coal Surface Mining Operations
Phosphatic Fertilizer Manufacturers
Runoff containing urea from airfield pavement deicing (large airports)

SLIDE 53

Existing Dischargers

Notice of Intent (NOI) due 90 Days after notification from OEPA
$350 Application Fee is due with NOI
Storm Water Pollution Prevention Plan must be revised within 180 days.

SLIDE 54

New Dischargers or Sources

NOI due 180 days before discharge of storm water
$350 Application Fee is due with NOI
Storm Water Pollution Prevention Plan must be in place

SLIDE 55

No Exposure Application

Applies to all categories of Industrial Activity except Construction
All industrial materials and activities are protected by a storm resistant

shelter to prevent exposure to rain, snow, snowmelt, and/or runoff

Applications must be submitted electronically through the Ohio EPA’s

eBusiness Center

No Charge for this Application

SLIDE 56

Key Changes from Previous Permit OHR000005

NOIs must be submitted electronically through the Ohio EPA’s eBusiness

Center.

Marinas are now covered (Subpart Q) – once the existing permit for

marinas runs out 1/21/18

No boat wash water discharges under this general permit
Change to the Definition of Wash Waters
Added: “hazardous cleaning products” for pavement and building wash down
Added prohibition of “dyes” and “leachate” from storm water discharges

under this permit

SLIDE 57

Key Changes from Previous Permit OHR000005

Removal of the requirement for the annual Comprehensive Site Inspection
Consolidated with Quarterly Routine Inspections
Reduced facility inspection and visual assessment requirements for

facilities achieving Platinum or Gold levels in the Ohio EPA’s Encouraging Environmental Excellence (E3) Program. http://epa.ohio.gov/ocapp/ohioe3.aspx

Annual Report Changed to be consistent with US EPA annual report

SLIDE 58

Key Changes from Previous Permit OHR000005

SWPPP must now be available to the public upon request (excluding CBI)
Benchmark Testing Changes
Procedure to document exceedances due to “run-on” from an upstream

facility

Testing requirements for facilities obtaining coverage in years 4 and 5
Composting (SIC code 2875) has its own benchmark monitoring
requirements. Sector C6
Appendix B; Standard permit condition language is now consistent with
ther Ohio NPDES permits.

SLIDE 59