MEMO TO FILE

FROM:	Kathleen Collins, Water Quality Standards Unit
TO:		Administrative Record
DATE:	December 15, 2015
RE:	Conference call for Tribal Technical Contacts regarding EPA's Upcoming Rulemaking for Copper and Cadmium


On November 24, 2015, I sent an email message to the technical contacts for the following Tribes:

      Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon
      Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians
      Coquille Indian Tribe
      Confederated Tribes of Siletz Indians
      Confederated Tribes of Grand Ronde
      The Klamath Tribes
      Confederated Tribes of Umatilla Indian Reservation
      Confederated Tribes of Warm Springs Reservation
      Cow Creek Band of Umpqua Tribe of Indians
      Nez Perce Tribe of Idaho
      Yakama Nation Tribal Council

The email contained a pdf copy of a November 23, 2015 tribal consultation offer sent to tribal leaders of the above referenced tribes.  The email also highlighted that a conference call would be held on December 15th from 9:00 AM to 10:00 AM to discuss the rulemaking and answer any questions the technical staff may have.  The email also encouraged staff to contact me directly if they could not make the conference call.  

On December 15, 2015 Ken Clarkson from the Nez Perce Tribe and Mary Lou Socia from EPA's Oregon Operation Office joined the conference call.  The talking points on the following pages provides the information that I shared with Mr. Clarkson.

                    TALKING POINTS FOR TRIBAL CONSULTATION
Room 19A
866-299-3188
Code: 206-553-1256#
Leader pin: 0756#
December 15, 2015

Tribal consultation offers were mailed out on Nov 23, letting tribal leaders know that 
EPA is planning to propose freshwater acute and chronic copper criteria as well as acute cadmium criteria for the state of Oregon by March 31,2016.

 Background Information
In January of 2013, EPA took a formal action under the CWA to approve, in part, and disapprove, in part, Oregon's 2004 toxics criteria for aquatic life.  Specifically: 
 EPA approved 38 of the 83 new and revised water quality criteria that Oregon adopted. 
 EPA disapproved 45 of the 83 new and revised water quality criteria that Oregon adopted.  
 Prior to taking its action, EPA consulted with the NMFS and FWS as required by the endangered species act. During that process NMFS found that some criteria could jeopardize the continued existence of T and E species.      
             Freshwater ammonia - acute and chronic
             Freshwater cadmium - acute
             Freshwater copper - acute and chronic
             Freshwater aluminum - acute and chronic
 The NMFS also provided "reasonable and prudent alternative" that could be taken to address their jeopardy decision....so EPA did include ammonia, copper, aluminum and acute cadmium in its disapproval action.
When EPA disapproves a state's criteria, the regulations say that the state has 90 days to remedy the disapproval.  If the state doesn't then the regulations say that EPA should "promptly" promulgate replacement criteria.  Just as an aside, 90 days an extremely time frame and not very realistic.  Oregon did provide EPA with a plan on how they would address the disapproval actions.
Oregon's Plan  -  
 easy first  -  disapprovals that did not have a jeopardy call associated with them.
   new ammonia criteria (  NMFS found new criteria consistent with their RPA)
  Copper 
 Finally Oregon would adopt cadmium and aluminum criteria   -  they did not have the expertise to derive criteria, and they knew EPA was working on new national recommendations, so they decided to wait for EPA to finish its work and then they would adopt the new cadmium and aluminum criteria....so that was the plan 
In 2014  -  Oregon addressed 38 or the 45 criteria EPA disapproved, and EPA approved Oregon's revisions
In 2015, Oregon adopted revised ammonia criteria consistent with EPA's 2013 304(a) recommendation. Oregon submitted the revised criteria to EPA on January 23, 2015. EPA approved the criteria in August 2015.  NMFS concurred that the ammonia criteria are consistent with the reasonable and prudent alternative (RPA) in the opinion.
Oregon's next rulemaking was for copper (they have been working on this)  -  and they are planning to go to public notice in the summer of 2016 and finalize new criteria in Dec 2016. Unfortunately,  
In April 2015, NWEA filed a complaint in the United States District Court for the District of Oregon, seeking an injunction that would compel EPA to: (1) "promptly" propose criteria for aluminum (acute and chronic), copper (acute and chronic) and cadmium (acute only) and (2) finalize the criteria within 90 days of proposal.
 Historically, EPA hasn't done well in defending against these types of lawsuits, so far we have always lost and the judges have given 2 months to propose and 3 months to finalize.
 Rather than go to court, we started settlement discussions with the environmental group in the hopes of coming up with mutually agreeable dates.  
 We were in discussion through summer and fall and recently there was a stay in the litigation and the attorneys are working out the details of a settlement.
 Cu and Acute Cd 	Propose by March 31, 2016 		Finalize by January 16, 2017
Aluminum		Propose by Dec 15, 2017		Finalize by Sept 28, 2018
 Even though the settlement agreement isn't finalized, we are operating under the assumption that these will be the dates 
 

 First Proposed Rulemaking  -  Cd and Cu  -  March 2016  

 March 31, 2016 - EPA is proposing revised freshwater aquatic life criteria for acute and chronic copper and acute cadmium.
 The COPPER criteria will reflect EPA's most recent national recommendation for copper which is the biotic ligand model.  This is consistent with the NMFS RPA.
 The Cu BLM is a metal bioavailability model
 10 site specific ambient water quality parameters are required to run the model (DOC, pH, temp, geochemical ions [calcium, magnesium, sodium, potassium, sulfate, chloride and alkalinity]).
 The BLM enables development of site specific criteria using site specific ambient parameters. 
 In order to use the BLM and come up with an adequately protective criteria, the site specific data that is collected must capture the spatial and temporal variability of the site to which the criteria will apply.  For example, DOC can vary significantly from season to season so you need to sample over a long enough time to capture the variability.  
 One of the big challenges with using the BLM is that the data for a site may not be available. 
 EPA anticipates releasing a technical support document that will provide default values for 8 of the 10 parameters and these default values can be used when site specific data is not available.
 The Acute CADMIUM criteria: EPA's new draft recommendation for freshwater cadmium went to public notice on December 1[st].   We anticipate finalizing our recommendations in March and EPA anticipates using the new national recommendation for the acute criterion for Oregon.
 The acute criterion will be a hardness based equation, so in order to develop criteria you need to know the ambient hardness of a water body  
 EPA will be recommending a "default" hardness value of 25 mg/L be used when site specific hardness data is not available to determine the appropriate hardness value to develop a criterion.
 As it turns out, the new criteria is about the same as our old recommendation 
 When NMFS provided its jeopardy opinion, it didn't know what cadmium criterion should be used.  So they provided a process that should be used to develop an acute criterion
 EPA has been working on the cadmium RPA and preliminary results show that the RPA process results in the same value that EPA's draft recommendation. 

 Final Rulemaking Anticipated in early 2017

 Questions?

