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Oregon Approves New Water Quality Rules Based On Highest ‘Fish Consumption Rate’ In Nation
Posted on Friday, June 17, 2011 (PST)

The Oregon Environmental Quality Commission Thursday approved new water quality standards designed to reduce or prevent toxic pollutants in Oregon waterways and that will be based on new human health criteria, including the highest fish consumption rate in the United States.


The rules include provisions allowing dischargers of pollutants to seek variances if a facility cannot meet the new standards.


The new standards that include the protective toxics criteria are expected to affect cities and facilities that are permitted to discharge one or more regulated pollutants to state waters.


Forestry, agricultural, construction and other activities may also be affected by the new standards.


The Oregon Department of Environmental Quality says it intends to clarify how it will interact with the Oregon Departments of Agriculture and Forestry to help pollution runoff sources implement management practices to reduce toxic runoff from farm and timber lands.


In addition, DEQ will also offer “new permitting implementation tools” to assist dischargers in making changes. Several of these tools take into account levels of background pollutants already present in a discharger’s intake water through intake credits and a site-specific background pollutant provision.


If a facility cannot meet discharge limits based on the new standards, it may be able to qualify for a variance. It would then apply for a variance, which includes development of a pollutant reduction plan approved and monitored by DEQ.


DEQ and EPA have coordinated and agreed on a process to review variances expeditiously.


“The revised standards are expected to improve health protection for those using Oregon waters by requiring pollution sources to take targeted actions where needed to reduce toxic pollutants discharged into those waters. These actions will in turn help sources achieve the new water quality standards. Any needed reductions will be reflected in discharge permits these sources operate under and as called for in the federal Clean Water Act,” DEQ said in a press release.


The commission approved the standards by a 4-1 margin, with Vice Chair Ken Williamson saying the standards “provide greater protections for sensitive populations. As a society we need to provide these protections. We are moving in the right direction.”


“We realize these new standards have drawn a great deal of interest and concern from the business and agricultural community, legislators and others who fear they will be overly restrictive. But DEQ will work closely with all those affected to ensure these changes are implemented fairly and effectively,” said DEQ Director Dick Pedersen. “We will monitor the new regulations’ effectiveness and report back to legislators and others on how the new standards are working. We feel strongly that these standards set the right goals for Oregon waters and, over time, will form the basis for any needed improvements in the quality of Oregon’s waters, its overall environment, and its overall livability.”


The proposed human health criteria revisions constitute the core of the new rules, which are based on a new fish consumption rate of 175 grams per day (about 23 eight-ounce fish meals a month), a leap from the state’s current 6.5 grams a day (less than one eight-ounce fish meal per month).


A higher fish consumption rate demands tougher restrictions on the amount of toxic pollution allowed to be discharged into Oregon waterways by point-source dischargers like industry and municipal waste water facilities.


The proposed rules would put limits on 114 toxics, including mercury, arsenic and certain pesticides. Studies have documented that certain populations, including Native Americans, eat more fish than the general population in the United States, and that toxics found in fish from Oregon waterways cause cancer, and effect immune, reproductive and nervous systems.


Prior to its efforts to develop these new revisions, DEQ developed and adopted rules in 2004. DEQ based the criteria for the 2004 rules on EPA’s recommended criteria at the time, which used an assumed 17.5 grams for the general population per day fish consumption rate - approximately the amount of fish that fits on a cracker.


At the time Oregon approved those standards, the Confederated Tribes of the Umatilla Indian Reservation expressed concerns to EPA that the standards were not protective enough of high fish consumers and did not meet EPA’s guidance that local data be used to make decisions on criteria.


In 2006, DEQ, EPA and the Umatilla Tribes reached an agreement to work together collaboratively to revise the fish consumption rate.


In what would be a two-year process, DEQ began re-evaluating its water quality standards, holding seven workshops around the state to share information and discuss stakeholders’ views about the fish consumption rate.


DEQ convened workgroups that looked at public health, and the fiscal impact and implementation of new rules. Workgroups included representatives from industry, local governments, non-government organizations, and local groups meeting to develop the new criteria with the intention of lowering the allowable amount of pollutants released to Oregon waters while, at the same time, considering variances and other actions that would provide affordable options to those that discharge those pollutants.


Meanwhile, in 2009, while stakeholders were meeting to hash out a new fish consumption rate, Oregon DEQ and EPA were sued for failing to meet federal Clean Water Act deadlines. Because the rulemaking process was not complete - data, comments and input was not yet available - EPA had not taken action. A federal court ordered EPA to take action on Oregon’s existing standards.


In June 2010, EPA disapproved those 2004 standards because, as agreed upon in 2006, they were not protective enough of Oregonians based on the amount of fish they are known to consume.


EPA’s disapproval caused the majority of the 2004 water quality criteria to no longer be effective, leaving in place the previous criteria of 6.5 grams per day that was adopted in the late 1980s.


The new rules, based on the FCR of 175 grams per day, will serve as the basis for permit limits and other regulatory decisions. It also would address EPA’s disapproval of DEQ’s 2004 criteria and obviate the need for EPA to promulgate federal rules for Oregon.


In addition to the proposed criteria revisions, the rules include a number of compliance options. For point-source dischargers, those include intake credits, background pollutant allowance, and other variances. Additionally, the new rules would include revisions to the Water Quality Standards and Total Maximum Daily Load regulations for non-point sources.


As an example, the intake credits would allow facilities to account for pollutants already present in the intake water. Facilities would not be allowed to increase mass or concentration of the pollutant at the point of discharge.


Variances would establish and apply alternative water quality standards for a specific pollutant to a National Pollutant Discharge Elimination System-permitted facility for a specified duration, or when a facility demonstrates it cannot meet water quality standards for one or more reasons, including natural conditions, human caused pollution, and/or when treatment technology is infeasible.


Variances could also be allowed with a pollution reduction plan, which would provide a mechanism for achieving water quality standards when underlying water quality standards cannot be met in the short term.


For more details on the new standards, please see DEQ’s “human health rulemaking” web page at


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