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Home My WebLink AboutNCWQA Petition PPtPETITION TO REMOVE CHRONIC SILVER WATER QUALITY CRITERION January 12, 2022 Before the EMC Water Quality Committee Paul Calamita General Counsel 1 NC Water Quality Association Public water, sewer, stormwater utilities statewide We support science-based requirements and strive to comply in an affordable and cost-effective manner for the citizens of North Carolina We care especially about low and fixed-income ratepayers We have never appeared before you…. 2 NC Water Quality Association We will show that DEQ’s chronic silver criterion: Violates State Law and is unnecessary Will have an enormous statewide impact on businesses and community for no reason We believe you are compelled to initiate rulemaking to remove it 3 NC WQS -15A NCAC 02B .0211(11)(c) (c) Freshwater metals standards that are not hardness-dependent shall be as follows: (i) Arsenic, dissolved, acute: WER∙ 340 ug/l; (ii) Arsenic, dissolved, chronic: WER∙ 150 ug/l; (iii) Beryllium, dissolved, acute: WER∙ 65 ug/l; (iv) Beryllium, dissolved, chronic: WER∙ 6.5 ug/l; (v) Chromium VI, dissolved, acute: WER∙ 16 ug/l; (vi) Chromium VI, dissolved, chronic: WER∙ 11 ug/l; (vii) Mercury, total recoverable, chronic: 0.012 ug/l; (viii) Selenium, total recoverable, chronic: 5 ug/l; (ix) Silver, dissolved, chronic: WER∙ 0.06 ug/l; 4 Silver Criteria Protection of aquatic life USEPA has had a hardness-dependent ACUTE silver criterion for decades but expressly declined to adopt (or require) a CHRONIC silver Criterion. Vast majority of states do not have a chronic silver criterion. A small handful do (FL) –but they are not subject to NC’s restriction on more stringent environmental rules More on this in a moment…. 5 Silver Criteria In 1984, DEQ adopted a very stringent, NON-HARDNESS-Based chronic silver criterion. According to DEQ: “While the records indicate that this was derived using the “Ambient Water Quality Criteria for Silver, October 1980” (EPA 440/5-80-071), it also appears from public records that the 1989 revisions to the state’s silver criterion were driven by 1987 Clean Water Act amendments requiring states to adopt numeric standards for any pollutant with a national criterion, including silver.” DEQ Summary of NC Surface WQS (https://deq.nc.gov/media/5490/open) at 21. 6 Silver Criteria DEQ’s asserted basis is incorrect: •There is no EPA recommended chronic silver criterion. •The 1987 CWA amendment is irrelevant -the only national criterion for silver is ACUTE •Virtually every other state does NOT have a chronic silver criterion…. 7 Silver Criteria DEQ’s silver criterion had no practical effect due to NC’s previous Action Level Approach: Test whole effluent (all pollutants combined) for toxicity and metals (including silver) at the same time If no toxicity –full compliance If toxicity, identify the pollutant and impose limits 8 Action Levels Were Removed –Chronic Silver Now Matters EPA objected to the NC action levels and the State acquiesced to removing them in 2018 –leaving the chronic silver criterion in effect Survey of 46 communities: Allowable silver went from 668.6 to 5.3 pounds per day Recall –no toxicity issues at 668.6 pounds per day We need to impose a 99.3% reduction on non-domestic users of our systems statewide for no reason Metal finishing is our #1 major industry statewide (30% of all majors) We also won’t be able to serve new/expanding businesses 9 10 Chronic Silver Criterion Violates State Law (And is Unnecessary) 11 §150B-19.3. Limitation on certain environmental rules (a) An agency authorized to implement and enforce State and federal environmental laws may not adopt a rule for the protection of the environment or natural resources that imposes a more restrictive standard, limitation, or requirement than those imposed by federal law or rule, if a federal law or rule pertaining to the same subject matter has been adopted, unless adoption of the rule is required by one of the subdivisions of this subsection. A rule required by one of the following subdivisions of this subsection shall be subject to the provisions of G.S. 150B-21.3(b1) as if the rule received written objections from 10 or more persons under G.S. 150B-21.3(b2): 12 §150B-19.3. Limitation on certain environmental rules (1) A serious and unforeseen threat to the public health, safety, or welfare. (2) An act of the General Assembly or United States Congress that expressly requires the agency to adopt rules. (3) A change in federal or State budgetary policy. (4) A federal regulation required by an act of the United States Congress to be adopted or administered by the State. (5) A court order 13 DWR Concedes There is No Federal CHRONIC Silver Criterion “DWR acknowledges that there is currently no federal recommended chronic criterion for silver.” Summary of NC Water Quality Standards 2007-2014 April 2015 https://deq.nc.gov/media/5490/open 14 None of the 5 Exceptions Fit DEQ’s Chronic Silver Criterion There clearly is no requirement for DEQ to adopt a chronic silver criterion (based upon one of the five exceptions to §150B-19.3) Accordingly, the EMC must remove the chronic silver criterion per State law Moreover, the criterion is completely unnecessary as demonstrated by decades of WHOLE effluent toxicity tests. 15 CWA Allows States to be More Stringent Section 510 of the federal Clean Water Act allows states to be more stringent than federal requirements However, NC GS §150B-19.3 (Limitation on certain environmental rules) directly limits DEQ’s ability to be more stringent to only where one of the five enumerated exceptions applies None of the five exceptions applies to DEQ’s chronic silver criterion 16 EPA Oversight If you hear that US EPA won’t let you remove the chronic silver criterion, that argument is a red herring. You must first comply with State law by removing the chronic silver criterion We believe EPA will approve the removal EPA does not require it of any other State…. If EPA singles NC out, the Courts will decide the matter 17 Summary of Issues Surrounding Chronic Silver Criterion We must remove the chronic silver criterion or be stuck with a criterion that is: •Not required by federal law •Contrary to State law •Not scientifically based •Not hardness-based •Not necessary to protect aquatic life •A major obstacle to retaining and attracting the largest major industry sector in our State 18 Conclusion We ask that the EMC promptly initiate rulemaking to remove the Chronic Silver Criterion from the State’s Water Quality Standards Rule in Accordance with GS §150B-19.3 19