1. Washington’s Surface Water Quality Standards rule-makings: human health-based criteria and implementation tools Cheryl Niemi Washington Department of Ecology Spokane River Forum March 27, 2013

2. Two concurrent Surface Water Quality Standards (WQS) rule revisions 1.Human health-based criteria (HHC) adoption 2.Revised implementation tools – focused on variances, compliance schedules, and (likely) intake credits Status and current timeline of the rule-makings: At the CR-101 stage now: “intent to develop a rule” CR-102 - Fall/winter 2013 - draft rule language with APA-required draft Cost/Benefit Analysis, Small Business Economic Impact Statement, etc.. – 180-day public review of draft rule CR-103 - final rule adoption - 2014

3. Rule-making Process – where we are now CR-101 Stage – three main venues for participation Policy Forums – public workshops to provide education, share perspectives, and prepare for discussion and evaluation of draft rule language – Examine discharge scenarios under current rules and then modify scenarios based on hypothetical changes to specific inputs to the criteria equations, possible modifications to analytical techniques, changes in 303(d) listing status, etc… Delegates Table - Meetings of representatives from different stakeholder groups to share concerns, perspectives and ideas, and to discuss policy issues. Not a decision-making body. Meetings – available to meet with groups if desired

4. Why is Ecology doing these rule-makings now? Implementation Tools: Current and future needs for tools that will help facilitate source controls and compliance for dischargers where meeting standards will take a long time – up to many decades. Current implementation tools are limited to 5 and 10 year timeframes. This includes both toxics and conventional pollutants (e.g., temperature). Human health-based criteria: WA is currently under 1992 federal rule for HHC: The National Toxics Rule (NTR; 40 CFR 131.36). The older NTR criteria should be updated to include consideration of: New toxicity factors: cancer and non-cancer Criteria for additional chemicals added to EPA’s recommended criteria list since 1992 New regional information on fish and shellfish consumption This will be the first time these criteria have been adopted into the WA WQS. Triennial Review web site: http://www.ecy.wa.gov/programs/wq/swqs/triennial_review.htmlhttp://www.ecy.wa.gov/programs/wq/swqs/triennial_review.html 2010 Triennial Review of the WQS ranked HHC adoption and implementation tools revisions as a high priority – targeted to start rule-making in 2012.

5. Situation: Some pollution reduction situations will take longer than 10 years to meet standards 5 Increasing pollution Time 10 yrs Short-term Actions 0 yrs Long-term Actions WQ criteria – risk based or NC Pollutant concentrations decreasing over time

6. WQS are composed of three main parts 1. Designated uses – include aquatic life, drinking water, recreation, etc… 2.Criteria – levels of water quality that fully protect the uses Numeric Narrative 3. Antidegradation Policy - ensures existing and designated uses are maintained and protected, and that waters of a higher quality than the criteria assigned in the standards are not degraded unless necessary and in the overriding public interest (WAC 173-201A-300). Also: Other policies affecting application and implementation, such as mixing zones, low flows, and variances (40CFR131.13). Human health criteria rule-making Implementation Tools Rule-making

7. What uses do HHC protect? 1.The “fishable/swimmable” goal of the CWA 2.The drinking water designated use A human health criterion is the highest concentration of a pollutant in surface water that is not expected to pose a significant risk to human health.

8. EPA’s Recommended Criteria EPA’s recommended criteria are for states to use as needed. They are developed for nation-wide use. EPA uses default exposure assumptions that are based on national data in its recommended HHC: A drinking water intake of 2 liters per day; An average body weight of 70 kg; A fish/shellfish intake rate of 17.5 g/day

9. Washington’s current HHC are in federal rule 1992 National Toxics Rule Currently contains criteria for 85 chemicals Criteria are based on the national default assumptions used in early 1990’s: NTR found at 40 CFR Part 131 AssumptionNational 1992 value Drinking water intake2 liters per day (= approx. 2 qts) Average body weight70 kg (= 154 lbs.) Fish/shellfish consumption rate 6.5 g/day (=0.23 oz./day = approx. 5.2 lbs/year

10. National Toxics Rule A little over half the 85 chemicals are carcinogens (e.g. DDT and PAHs). The rest are non-carcinogens. NTR includes a risk level for carcinogens of one- in-one million (Washington’s WQS language includes this risk level).

11. How are current NTR HHC used in regulating sources of pollution? Identifying impaired waterbodies under CWA Section 303(d) Targets in Water Clean-up Plans (Total Maximum Daily Loads) NPDES permit limits

12. Calculating HHC Each chemical has 2 criteria associated with it Exposure pathway: fish/shellfish and drinking water These criteria apply to freshwaters Exposure pathway: fish/shellfish only These criteria apply to marine waters Carcinogenic chemicals Example: DDT Fish and Shellfish ingestion Water ingestion Cancer effects Fish and Shellfish ingestion Cancer effects Non- carcinogenic chemicals Example: Mercury Non-cancer effects Fish and Shellfish ingestion Water ingestion Non-cancer effects Fish and Shellfish ingestion

13. Some of the big policy/risk management decisions: Clarification of the risk level in the WQS? Fish consumption rate or rates Geographic break? Anadromous fish? Additional data needs? How to address sources of toxics outside the scope of the CWA – and how does this affect the criteria equation inputs? Adopt criteria for all new EPA recommended chemicals? Any state-specific criteria?

14. Science, science policy, and risk management Risk Management example from EPA (2000): “Risk management is the process of selecting the most appropriate guidance or regulatory actions by integrating the results of risk assessment with engineering data and with social, economic, and political concerns to reach a decision. In this (EPA 2000) methodology, the choice of a default fish consumption rate which is protective of 90 percent of the general population is a risk management decision. The choice of an acceptable cancer risk by a State or Tribe is a risk management decision.” (from: USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000), EPA-822-B-00-004, page 2-3)

15. Law, regulation, policy, and guidance Set requirements and boundaries. All these can carry different weight when making regulatory decisions. Will need to clearly articulate the choices and directions guided by these factors, as well as be clear about the policy, science policy, and risk management decisions inherent in HHC development. Focus on transparency in communication and decision- making.

16. What we have now and ahead of us.. Big and complex process Address science, science policy, and risk management all within the boundaries and requirements set by law, regulation, policy, and guidance.

17. Conclusion Plan to continue work on developing a broad public discussion of the issues surrounding development of the human health criteria and the development of new or revised implementation tools, and the way the contents of these rules could play out in the future. Scenarios will continue to be important to look at overall impacts to the permitting program.

18. Additional Resources Surface Water Quality Standards web page: http://www.ecy.wa.gov/programs/wq/swqs/index.html Surface Water Quality Standards Rule Revisions: http://www.ecy.wa.gov/programs/wq/swqs/Currswqsruleactiv.html http://www.ecy.wa.gov/programs/wq/swqs/Currswqsruleactiv.html Water Quality Information, including rule making information: http://listserv.wa.gov/cgi-bin/wa?A0=ECOLOGY-WATER-QUALITY-INFO Water Quality Standards Coordinator Becca Conklin 360-407-6413 swqs@ecy.wa.gov Water Quality Standards Toxics Technical and Policy Lead Cheryl Niemi 360-407-6440 cheryl.niemi@ecy.wa.gov Agency Contacts

19. Thank you Questions/comments?