August 9, 2006 Adoption Hearing Carrie Austin Thomas Mumley Basin Plan Amendment to Establish SF Bay Mercury Water Quality Objectives and Revised TMDL Good morning Chair and Members of the Board. I’m Carrie Austin, an Engineer working on mercury. Dr. Mumley and I are making today’s presentation. August 9, 2006 Adoption Hearing Carrie Austin Thomas Mumley

Presentation Overview Basin Plan amendment New water quality objectives TMDL revisions Key comments Changes in response to comments Remand and response At this hearing today we are asking you to act by adopting the resolution for the proposed Basin Plan amendment. In our presentation this morning we will cover the following: (read slide) Dr. Mumley will then conclude the presentation

History TMDL and Implementation Plan adopted by Water Board (Sept. 2004) State Water Board remand (Sept. 2005) Water Board Testimony Hearing (June 2006) First, a quick re-cap. In Sep 2004 you adopted the SF Bay Mercury TMDL which is a comprehensive approach to solve a complex problem. The State Board remanded this back for revisions in Sep 2005, and in Nov you agreed with our general approach in response to the remand. We then developed the package we have submitted to you, and held the first formal hearing in June of this year.

PROPOSED Water Quality Objectives in SF Bay 0.2 ppm mercury in large predator fish The first of two main topics in the proposed Basin Plan amendment are new water quality objectives. EPA’s prime concern in 2004 was with the Water Quality Objectives. This is true not only for the SF Bay mercury TMDL, but for our other mercury TMDLs, as well. To resolve this concern, we are now proposing new fish tissue mercury objectives for SF Bay, and in the future we will establish new fish mercury objectives with each mercury TMDL. We are proposing NEW water quality objectives for San Francisco Bay shown here in gold text. We recommend these objectives in fish tissue because fish tissue best represents the risk from mercury, and because mercury is directly measurable in fish. to protect human health we propose 0.2 ppm mercury in larger fish. to protect wildlife we propose 0.03 ppm mercury in smaller prey fish 0.03 ppm mercury in prey fish California least tern

Revisions to TMDL Reduction in wastewater wasteload allocation The second main topic in the proposed Basin Plan amendment is revisions to the TMDL. The most significant change to the TMDL is the reduction in the allocations to wastewater, which I’ll describe in the context of all sources

Sources, Loads, and Allocations NPDES Permits Mercury sources and current loads are shown in the maroon bars on this graph. As you can see from the bar on the left, by far the greatest contribution comes from California’s mining legacy. We calculated aggregate allocations for each source category, and then developed, as required, individual waste load allocations for NPDES permits – which only apply to the Urban Runoff and Wastewater source categories. Let’s take a closer look at the wastewater source category.

Sources, Loads, and Allocations On the inset chart, we show the dramatic reductions in mercury from wastewater. The tall white bar is the estimated mercury load from municipal wastewater in 1970 of 113 kg/yr. Over the previous 3 decades we estimate that municipal wastewater has decreased its mercury load to the Bay by 85%, down to the maroon bar - 17 kg/yr, and because industrial wastewater also improved its treatment systems in the 1970’s & 80’s we estimate that industry too, has greatly decreased its mercury loads to the Bay. As we described in June, we propose about a 33% FURTHER reduction in the wastewater load for municipal and industrial wastewater combined, from 18 to 12 kilograms per year, in accordance with the Remand requirement to achieve best treatment and pollution prevention for wastewater. We conclude from this information that our NPDES permits for wastewater have worked, and that we need this TMDL to address the other more significant sources.

Key Comments U.S. EPA support Wastewater – reducing allocations Pollutant offsets CEQA and regulatory analysis Wastewater – enforceable limits The Key Issues from commenters are: The U.S. EPA has voiced its support for the new Water Quality Objectives and revisions to the TMDL, which resolves a key issue from 2004. The second issue we received comment on is that this TMDL is an unfair burden on wastewater. We disagree – in keeping with the remand, we are requiring wastewater to employ best treatment technology and pollution prevention There is a lot of interest in pollutant offsets, but development of this policy is in the State Board’s court. We are confident that our revised CEQA and Regulatory Analyses provide adequate and appropriate support for the proposed Basin Plan amendment. The Wastewater – Enforceable Limits issue is a remaining area of disagreement with stakeholders. This was not in the remand, but it came up at the June testimony hearing and in written comments, so we met with stakeholders to discuss it. Some stakeholders have taken the position that our approach is bad policy because it isn’t enforceable. We disagree – we have taken an innovative approach which differs from a more conventional single limit approach. Let me explain.

Implementation of Wastewater Wasteload Allocations Combination of numeric and narrative effluent limitations Consistent with but more stringent than 2004 Individual wasteload allocations  enforceable limits Read slide Consistent with but more stringent than what you adopted in 2004 And the  Result in

Enforcement of Effluent Limitations Individual numeric annual mass limits Enforcement tied to aggregate allocation Consistent with wasteload allocations Individual numeric triggers Immediate corrective action Narrative requirements The wastewater effluent limitations are three-fold: Individual numeric annual mass limits individual mercury concentration and mass triggers Narrative requirements such as special studies, pollution prevention and risk reduction Individual numeric annual mass limits are enforceable if the aggregate allocation is exceeded 2. The individual mercury concentration and mass triggers By design call for immediate corrective action (which is a prime goal of any enforcement action); even no-response, or poor-response to a trigger is enforceable. 3. Narrative requirements, too, are enforceable Our proposed implementation plan calls for a suite of enforceable limitations, that goes above and beyond a single enforceable limit. Breathe!

Key Changes Made in Response to Comments Board Member Comments: Removed urban runoff “deemed in compliance” Clarified “methylmercury” issues Wastewater to conduct methylmercury studies Adaptive Implementation – new evidence – may justify a methylmercury TMDL or allocations The key changes we made in response to board member comments were to: Remove the urban runoff “deemed in compliance” language. You will recall from June that Baykeeper strongly opposed this language and some Board Members agreed. We do not believe it is a substantive change and therefore have deleted it. However, the urban runoff agencies have expressed concern about this deletion, but are willing to accept it if we affirm the following 3 points: 1. Municipal stormwater permits will follow the Basin Plan and State Board Order 99-05 requiring an iterative approach to complying with receiving water limits; 2.Federal Regs require NPDES permits to be consistent with TMDLs, but don’t require direct implementation of TMDLs; and 3. Municipal stormwater permit compliance will continue to be determined based on whether permit requirements are met. We clarified that regarding methylmercury, that wastewater dischargers will conduct studies to better understand methylmercury fate and effects in the Bay, And under Adaptive Implementation, staff will take into account any new evidence regarding methylmercury which may justify a methylmercury TMDL or allocations in the future.

Key Changes Made - continued - Written Comments: Implement corrective actions when a trigger is exceeded Board will pursue enforcement As we worked to compile our responses to comments, we met with many interested parties to discuss their concerns and the rationale for our response. We are grateful to these stakeholders for the time and effort they have put into this process of review and discussion. In response to their written comments, we added: That wastewater will “implement” corrective actions when a trigger is exceeded, and that the Board will pursue enforcement action against wastewater dischargers that do not respond to exceedances or do not implement timely actions

Remand Wastewater allocations should reflect best pollution prevention and treatment Require methylmercury monitoring Clarify consistency with dredge disposal Long Term Management Strategy In summary, the changes we have made to the 2004 TMDL in response to the remand include: Wastewater allocations now reflect best pollution prevention and treatment NPDES permit holders are required to monitor for methylmercury The TMDL is consistent with the dredge disposal Long Term Management Strategy

Remand, continued Inventory and prioritize legacy sources Address risk reduction concerns Revise wildlife target Resolve USEPA concern with outdated water quality objective We have taken steps to ensure that legacy sources such as mines and hot spots are being addressed, and progress towards cleaning up these sites will be evaluated on a regular basis. We responded fully to the Remand risk reduction requirement, but some stakeholders are asking that we go beyond the remand and requires dischargers to mitigate health effects associated with mercury exposure. We assert that mitigation of health effects is a concept not clearly defined, which may be beyond our regulatory authority, and given the significance of legacy sources in the bay, may best be done collaboratively as described in the TMDL. We revised the wildlife target and resolved the USEPA concern with an outdated water quality objective Now, I’ll turn the podium over to Dr. Mumley.

Other Approaches Considerable time and effort for no water quality benefit More technical and regulatory analyses New public notice May compromise other components Special studies Risk reduction

Benefits of our Approach Reflects and promotes discharger collaboration to solve mercury problem, address risk, and other impairments Triggers ensure immediate individual accountability and corrective action Allows for adaptive implementation There are benefits to our approach: Reflects and promotes discharger collaboration to solve mercury problem, address risk, and address other impairments Triggers ensure immediate individual accountability Allows for adaptive implementation The bottom line – ours is the best solution to the mercury problem. We are ready to turn our energies to implementation. Ask for adoption today.

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