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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
Wednesday, January 14, 2015
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
3
Problem Statement
• Which tools can we legally
apply?
• How do we focus them?
4
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 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
PCBs,
dioxin/furans,
DDX, PAHs
TMDLs
5
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 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
•
•
–
–
•
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
Groundwater
Riverbank Erosion
Overwater
Upstream sources
–
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
MS-4 municipal permits
Publicly Owned Treatment
Works (POTW) permits
Other in-site sources
contributing to surface water
–
–
–
•
General
Individual
All of above
6
FOCUSING JUST ON STORMWATER
CONTROL . . . .
7
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
Oregon Source Control approach
10
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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 all12
dischargers
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
13
ODEQ Tool for Determining whether
Stormwater Discharge is Typical
14
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
Lead—Portland Harbor “Knee of
Curve”
1200Z
benchmark
40 ug/l (total)
JSCS SLV
0.54 ug/l
(dissolved)
15
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
Parameter Specific Comparison:
Lead
Pb
CWA Program: 1200-Z
NPDES
Cleanup Program:
Portland Harbor JSCS
40 ug/l (total) benchmark
0.54 ug/l (dissolved) Screening
Level Value
16
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
18
40 ug/l benchmark.
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
Parameter Specific Comparison:
PCBs
Total
PCBs
CWA Program: 1200-Z
NPDES
Cleanup Program:
Portland Harbor JSCS
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
PCBs—Portland Harbor “Knee of
Curve”
1200Z
303(d)
ref.
conc.
2 ug/l
JSCS
SLV
0.000064
20
ug/l
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5
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
Focusing the Right Regulatory Approaches
on Surface Water Source Control at Sediment Sites
W e d n e s d a y, J a n u a r y 1 4 , 2 0 1 5