Response to Public Comments Received on March 2009 Draft

Response to Public Comments Received on March 2009 Draft Final P³ List Background The Oregon Department of Environmental Quality (DEQ) released the Draft Final Priority Persistent Pollutant List (“P³ List”) for public review and comment between March 2 and 27, 2009. DEQ sought substantive verifiable scientific or technical information on any specific pollutant on the Draft Final P³ List. Stakeholders and interested members of the pubic could submit comments in writing to DEQ anytime during the public comment period. In addition, DEQ conducted public information sessions at four locations throughout the state (Pendleton, Coos Bay, Medford, and Portland) to give stakeholders and interested members of the pubic an opportunity to learn and ask questions about the list development process and the Draft Final P³ List. DEQ received written comments totaling more than 200 pages from 55 separate commenters. Of these, approximately 106 comments addressed scientific or technical aspects of the list and approximately 40 comments addressed policy or legal issues. Of the comments directed at specific pollutants, they requested approximately 60 pollutants be added to the list, approximately 50 pollutants be removed, and for 3 pollutants different comments requested both the retention and removal. DEQ evaluated all of the comments received. Changes and modifications made to the process and subsequent list are noted throughout this report where a comment influenced or altered the process. Following are summaries of the comments received and DEQ’s response. DEQ detailed information regarding technical questions and concerns in the report associated with the June 1, 2009 Interim Final P³ List. This report and other materials are available on the project website, http://www.deq.state.or.us/wq/sb737. 1. TECHNICAL COMMENTS A. Models Summary of Comments Some commenters expressed concern regarding the use of PBT profiler to estimate persistence values, rather than using published data for values. In addition, some commenters noted that the PBT Profiler is intended as a screening level tool, and DEQ’s process to develop the persistent priority pollutant list needs to be more sophisticated. Similarly, some commenters expressed confusion about DEQ’s decision to use the RAIDAR model to prioritize pollutants. DEQ Response DEQ’s use of a model to estimate a chemical’s characteristics was appropriate, given the number of chemicals that DEQ evaluated, the timeframe established by the legislation, the data gaps that exist for a large majority of the chemicals considered. In addition, the use of a model to estimate the chemicals’ characteristics is consistent with the “Priority-Setting” phase recommendations described in the Society of Environmental Toxicology and Chemistry’s (SETAC’s) Framework for identification and evaluation of persistent pollutants (www.setac.org/sites/default/files/ExecutiveSummary.pdf), recognizing the need for rapid, inexpensive, and conservative prioritization. DEQ used the RAIDAR model to prioritize pollutants 1 numerically in the draft P³ List. The Interim Final List will not be prioritized in the same manner; as a result, DEQ did not use the RAIDAR model to develop the Interim Final P³ List. B. Comments regarding specific chemicals Summary of Comments For 69 specifically identified pollutants, DEQ received requests to either add or keep them on the list. Commenters requested a total of 50 specifically identified pollutants be removed from the list. For an additional 3 pollutants DEQ received conflicting requests to both keep them on the list and to have them removed. DEQ Response For the pollutants that commenters specifically identified that DEQ did not initially consider in developing its draft list, DEQ subsequently ran those pollutants through the updated models to determine whether those pollutants met the criteria established for inclusion on the list. DEQ had limited capacity (both time and resources) to further evaluate data for pollutants that commenters expressly requested be removed. As a result, DEQ placed any pollutant that met the Senate Bill 737 persistent pollutant criteria and received public comments in Tier 3 of the Interim Final P³ List noting that they are “Under Review.” DEQ has issued a memo (http://www.deq.state.or.us/wq/sb737) detailing data requests for specific information for pollutants in Tier 3. C. Source Lists Summary of Comments DEQ received various comments regarding the source lists it used to identify potential persistent pollutants in the initial steps of the list development process. Some commenters voiced concern over the validity of information sources. Others questioned whether particular types of chemicals should be considered for inclusion on the list. DEQ Response DEQ sought out all relevant lists of toxic, persistent, and/or bioaccumulative pollutants for its initial consideration, and the science workgroup reviewed all source lists. Pollutants on the Interim Final P³ List met the persistent pollutant criteria as defined by the legislation. As noted previously, where commenters brought specific chemicals to DEQ’s attention, DEQ ran those chemicals through the list development process, and as appropriate, included them in Tier 3 of the Interim Final P³ List. D. Decision-making criteria for removal of pollutants Summary of Comments Some commenters expressed concerns with DEQ’s decision-making criteria for removing pollutants from the list. DEQ Response DEQ used a systematic and defensible process to remove pollutants from the list. This process was endorsed by the Persistent Pollutant Science Workgroup and consistent with the SETAC Framework. This process is described in the Report that will accompany the Interim Final P³ List. 2 E. Synergistic effects of pollutant “cocktails” Summary of Comments Some commenters expressed concern with the potential for pollutants to exert synergistic effects when they are present as pollutant “cocktails.” DEQ Response DEQ appreciates the concerns expressed by the commenters regarding the synergistic effects of multiple pollutants present in water at once. However, these effects would not be a factor in determining whether or not a chemical is a persistent pollutant, as defined by Senate Bill 737. In addition, a readily available methodology to evaluate such effects does not currently exist. 2. OTHER COMMENTS A. Exemption of certain categories of pollutants Summary of Comments Several comments requested exemptions of pollutants from the list. Specific exclusions requested were: Registered pesticides should be exempt Legacy pollutants should be exempt based on infeasibility of reduction Chemical with natural sources should be exempt Chemical already regulated under the Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), or DEQ’s clean-up or orphan site programs Pollutants that do not have a reasonable, affordable and reliable analytical method should be segregated from the active P³ List. DEQ Response DEQ considered all known, relevant lists of chemicals without regard for their intended use. Consistent with the legislation’s requirements, DEQ sought first to identify those pollutants that “have a documented harmful effect on the health and well-being of humans, fish or wildlife, especially aquatic species” and secondly, that “pose a threat to the waters of this state.” As a result, DEQ evaluated chemicals based on their toxicity, persistence, and bioaccumulative characteristics. All of the pollutants on the list have potential to cause harm to aquatic life if they get into the water and thereby have the potential to pose a threat to Oregon’s waters. DEQ has incorporated some information to date about the likelihood of some pollutants to be present within Oregon and will continue to compile additional information during the source identification phase in the coming year. Given this approach, DEQ has not exempted and does not intend to exempt any group of pollutants. With regard to legacy and globally sourced pollutants, DEQ has established a separate Tier, acknowledging that these pollutants continue to impact the health and well-being of humans or aquatic species. While DEQ does not intend to exempt any group of pollutants from the list, DEQ will consider existing requirements and efforts to reduce relevant pollutants as well as the cost of methods in subsequent phases of carrying out the requirements of the legislation. 3 B. Inclusion of certain categories of pollutants Summary of Comments Several comments requested categorical inclusion of pollutants on the list. Specific inclusions requested were: Chemicals detected in Pacific Northwest people, fish, and water Legacy pollutants High production volume pollutants and pollutants discharged in large amounts DEQ Response DEQ considered all known, relevant lists of chemicals. Where commenters identified specific pollutants, DEQ consider those pollutants as described in Responses 1.B. and 1.C. Pollutants of concern not meeting criteria of SB737 will be covered under Agency-wide Toxics Reduction Strategy. See preceding response (2.A.) for DEQ’s approach to legacy and globally-sourced pollutants. C. Public involvement Summary of Comments Several commenters stated a concern about the overall process and opportunities for public involvement and interaction. Specifically, some commenters expressed concern that “interested parties” and stakeholders were not brought into the process early enough; that the public comment period was too brief. In addition, some commenters sought an opportunity to respond to DEQ’s revised list prior to June 1. DEQ Response In order to meet the Legislatively mandated deadline, DEQ developed a workplan with tight timelines and as many opportunities as possible to communicate with those interested in the project. DEQ understands that the public comment period was shorter than many commenters would like. To reach as many people as possible, DEQ made its detailed workplan, meeting information, and opportunities for public involvement available on the project website. DEQ held four public information sessions across the state, and held several invitational meetings with stakeholders during the public comment period. In order to meet the Legislatively mandated deadlines, DEQ was unable to accommodate requests for more time. D. Concerns with membership of workgroups Summary of Comments Some commenters asserted that the membership of the Persistent Pollutant Science Workgroup and the Methods Workgroup were not representative of all perspectives. DEQ Response DEQ sought individuals that would result in balanced groups representing a range of expertise relevant to the charge given to the groups. DEQ sought individuals specifically for their technical expertise and not based on representing a specific position or interest group. 4 E. Feasibility of Reduction/Tiering of the List Summary of Comments Some commenters requested that DEQ take into account the feasibility of reducing pollutants into the development of the list, citing to the statute’s acknowledgment of that factor. In addition, some commenters suggested that establishing a specific tier of the list to accommodate those pollutants that have a limited ability to be further reduced. DEQ Response DEQ did consider the feasibility of reducing pollutants in the development of the Interim Final List. The list contains 3 tiers, with Tier 2 containing legacy and globally sources pollutants (See Response 2.A.). In addition, feasibility of reduction will be considered during the implementation phase. F. ”Waters of the State” Summary of Comments Some commenters suggested that DEQ demonstrate how it considered pollutants entering “waters of the state”, as detailed in the legislation. The commenters expressed concerns that the Draft Final P³ List included pollutants not likely to be found in Oregon. DEQ Response DEQ performed a preliminary assessment of whether pollutants on the Draft P³ List were likely to be present in Oregon. Those pollutants not likely to be present in Oregon were removed from the list. For example, pollutants found only in the Canadian tar sands were removed. DEQ has incorporated some information to date about the likelihood of some pollutants to be present within Oregon and will continue to compile additional information during the source identification phase in the coming year. Pollutants unlikely to be found in Oregon, and for which no data exists showing their presence in Oregon’s waters, will be removed from the list. All of the pollutants on the list have potential to cause harm to aquatic life if they get into the water and thereby have the potential to pose a threat to Oregon’s waters. G. General Support Summary of Comments Some commenters noted broad support for the project. DEQ Response DEQ appreciates the level of interest and support for this project. H. General Opposition Summary of Comments Some commenters noted broad opposition to the project and expressed skepticism that a need exists to develop and implement such a list. DEQ Response DEQ is committed to toxics reduction and will use the P³ List to help focus the State’s water pollution reduction efforts. DEQ is also committed to carrying out the requirements of this legislation. 5 I. Implementation Summary of Comments Some commenters opposed categories of pollutants contained in the list or expressed opposition to the list development citing consequences for their activities or businesses. DEQ Response DEQ continues to emphasize that this legislation focuses on pollution prevention, and the requirements apply only to Oregon’s 52 largest wastewater treatment facilities. J. Next steps--Monitoring Summary of Comments Some commenters suggested facilities covered by WPCF permits should be exempt from end-of-pipe monitoring. Additionally, some commenters pointed out that data quality is more important than method availability. Some commenters expressed concerns about cost of monitoring for a long list of pollutants. DEQ Response The statute requires all WPCF & NPDES permittees with a dry weather design flow of 1 million gallons of water per day to prepare Toxics Reduction Plans for priority persistent pollutants present in the facility’s effluent. DEQ is conscious of concerns about the cost of monitoring and the quality of laboratory data. These are topics the Methods Workgroup is addressing so that DEQ can understand the potential costs associated with monitoring for these pollutants. In addition DEQ will consider the cost of monitoring when developing expectations and monitoring guidance for municipal wastewater treatment plants. K. Next steps—Toxics Reduction Plans Summary of Comments Some commenters suggested that municipal wastewater treatment plants should not be required to monitor for or develop toxics reduction plans for pollutants under SB 737 that are not within the municipalities’ sphere of influence with the facility pollution prevention plans. Conversely, some commenters suggested that all NPDES permit holders should do toxic reduction plans. In addition, others questioned the applicability of toxic reduction plans to non-point sources. DEQ Response The statute’s requirement to develop toxic reduction plans is specific to the 52 largest municipal wastewater treatment plants. The statute does not address other sources. In its Interim Final P³List, DEQ has established Tier Two for legacy and globally-sourced pollutants, recognizing that these pollutants continue to impact the health and well-being of humans or aquatic species, and that broad scale toxic reduction efforts will not significantly reduce either of these classes of pollutants. DEQ has not yet developed guidance for its expectations for toxic reduction plans. 6 L. Next steps—Mechanism for Revising the List Summary of Comments Some commenters sought additional opportunities to provide DEQ with additional data that could inform the pollutants contained on the list. Others questioned generally, whether and how the list could be revised in the future. DEQ Response DEQ is publishing an Interim Final P³ List that is prioritized into three tiers as described below. This P³ List is “interim” to allow for a limited assessment phase (aimed at the Tier Three pollutants) prior to its finalization of the list. Tier One pollutants are those pollutants that are toxic and either persist in the environment or accumulate in the tissues of humans, fish, wildlife or plants. Tier Two or “legacy” pollutants include substances that have been banned or restricted for years but remain at detectable levels in sediment and tissue samples. Tier Three pollutants are persistent pollutants that DEQ considers “under review.” These include substances that some members of the public question as meeting the definition of a persistent pollutant. DEQ is publishing a memo to accompany the Report describing additional focused information on these substances that will assist DEQ in conducting a final review prior to determining whether they should be included in the final list.DEQ will issue the Final P³ List in October 2009. The statute also states that DEQ may revise the list, and requires DEQ to report to the Legislative Assembly or interim committee whenever it adds to or removes a pollutant from the list. M. Questions related to next steps—Source Identification and Implementation Summary of Comments Many commenters provided thoughts about ways to improve the source identification phase and associated implementation of the requirements of the legislation. DEQ Response These two areas will comprise the majority of DEQ’s efforts over the coming year. DEQ will establish specific timelines, interim deliverables, and opportunities for public input during the next phase of the project. DEQ looks forward to continued discussion on these topics during the coming year. 7