|5/23/2017 8:38 am
Date / Time filed with the Register of Regulations
VA.R. Document Number: R____-______
Virginia Register Publication Information
Transmittal Sheet: Response to Petition for Rulemaking
Initial Agency Notice
||State Water Control Board
||Department of Environmental Quality
629 East Main Street
P.O. Box 1105
Richmond, VA 23218
|9 vac 25 - 260:
||Water Quality Standards
State: Sections 62.1-44.15(10) and 62.1-44.15(3a) of the Code of Virginia
Federal: Clean Water Act (33 USC 1251 et seq.)
40 Code of Federal Regulations 131
|Date Petition Received
||Virginia Coal and Energy Alliance ("VCEA")
The Virginia Coal and Energy Alliance ("VCEA"), has petitioned the State Water Control
Board to take action on EPA's Freshwater Aquatic Life Ambient Water Quality criteria
for selenium ("EPA selenium criteria"). The EPA selenium criteria were finalized and
published in the Federal Register on July 13, 2016, and include four elements - two
that are fish tissue-based and two that are water column-based. The updated EPA selenium
criteria reflect the latest scientific knowledge at the national level and provide
a more up-to-date evaluation of impacts from selenium than Virginia's current surface
water quality criteria at 9 VAC 25-260-140. Virginia's acute and chronic selenium
criteria are over 25 years old, do not reflect the latest scientific information,
and are unnecessarily stringent to protect aquatic life. As long as the outdated and
obsolete criteria remain on the books, we are concerned that our members will be placed
in peril of unreasonable compliance obligations, misguided enforcement actions and
At DEQ's July 20, 2016 Regulatory Advisory Panel meeting to address "carry-over" issues
from the last Triennial Review of Water Quality Standards, VCEA representatives alerted
DEQ to the availability of the new EPA selenium criteria and asked that selenium be
addressed along with the other carry-over issues. VCEA now formally requests, pursuant
to Va. Code § 2.2-4007, that the existing surface water quality criteria for selenium
be amended to incorporate the EPA selenium criteria, subject to appropriate tailoring
for Virginia's waters and fish species. The Board is empowered to adopt water quality
standards in the Commonwealth. Va. Code § 62.1-44.15. Virginia is required to review
applicable water quality standards and as appropriate, modify and adopt federal standards.
33 U.S.C. § 1313(c)(1); 40 C.F.R. § 131.20(a).
EPA has recently published technical support materials to assist states in adopting
the new selenium criteria, including guidance on monitoring fish tissue, water quality
assessment and listings under section 303(d) of the Clean Water Act, and implementation
of the criteria in NPDES permits. These technical support materials should provide
a sufficient basis to guide adoption of the EPA selenium criteria in Virginia, subject
to modifications that reflect the unique characteristics of Virginia's waterbodies
and fish species.
We note that EPA's criteria include a hierarchy with a stated preference for the use
of fish tissue data, where available, in evaluating compliance with the criteria.
The criteria provide that where fish tissue data are available, the fish tissue criteria
supersede the water column criteria. This same hierarchy should be adopted and the
fish tissue criteria should be allowed to prevail over any water column criteria where
fish tissue data are available. Importantly, the Board will need to consider state-
or regionally-specific tailoring of the fish tissue values set by EPA. EPA's data
set for fish tissue covers 10 fish genera for chronic toxicity for fish reproductive
effects and seven fish genera for non-productive effects. Some of these species do
not occur in some or all of Virginia's waters. As a result, we believe that the fish
tissue criteria will need to be adjusted so that they are reflective of, and protective
of, the fish species that are actually present. In particular, we ask that regional
criteria specific to the coalfields region of the Commonwealth, given its unique geography,
geology and hydrology, be considered. Further, a translation procedure, consistent
with Appendix K in the EPA selenium criteria document, needs to be adopted to provide
a process for use by dischargers seeking site-specific criteria.
Whether to deviate from EPA's guidance in the technical support document "FAQs: Implementing
the 2016 Selenium Criterion in CWA Section 303(d) and 305(b) Assessment, Listing,
and TMDL Programs," as it relates to fishless waters will also need to be evaluated.
EPA's guidance counsels that where no fish tissue data are available because waters
have insufficient in-stream habitat and/or flow to support a population of any fish
species on a continuous basis, or waters that once supported populations of one or
more fish species but no longer support fish, the water column values are the applicable
criteria and the water column data are sufficient to determine whether the criteria
have been met. We urge rejection of EPA's approach to fishless waters. Where a waterbody
does not have an actual, existing aquatic life use, the use simply does not apply.
In that case, the criteria adopted to protect such a use also do not apply. We submit
that this is consistent with the longstanding approach to uses and criteria in Virginia.
By way of simple example, the "Public Water Supply" use only applies where a public
water supply is shown to be present. In the absence of a documented public water supply,
neither the use nor the corresponding "PWS" criteria apply.
Finally, given the time it is likely to take to implement any change in the selenium
criteria, and the need for permittees to appropriately adjust their operations to
comply with any new limits, authorizing longer term compliance schedules for permittees
will need to be considered, since compliance with criteria-based limits may in some
cases take more than five years.
The Board received the petition at its meeting on May 17, 2017. The Board is, in
accordance with the provisions of the Administrative Process Act, announcing a public
comment period on the petition. The comment period begins on June 12, 2017 and ends
on July 5, 2017. After close of the comment period comments will be reviewed and
staff responses and a recommendation on initiating a rulemaking will be prepared and
presented to the Board for their consideration at a regular meeting of the Board.
||05/24/2017 (comment period will also begin on this date)
|Comment End Date