Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1801 - Negotiated Rulemaking

Rulemaking initiated to update Idaho’s human health criteria for arsenic.

Meetings | Public Comment Opportunities | Background Information

Status of Rulemaking

November 29, 2018, meeting cancelled. No meetings scheduled at this time.

November 2018 Board of Environmental Quality Meeting

Rulemaking Documents Required by Idaho Administrative Procedure Act

Overview

This rulemaking has been initiated to update Idaho’s human health criteria for arsenic.

In May 2016, EPA entered into a consent decree with Northwest Environmental Advocates to reconsider EPA’s 2010 approval of Idaho’s human health criteria for arsenic. In September 2016, EPA disapproved Idaho’s human health criteria of 10 µg/L arsenic for both consumption of fish only and consumption of fish & water. The consent decree requires that EPA propose new human health criteria for arsenic by November 15, 2018, and that EPA either approve Idaho’s submittal of revised human health criteria for arsenic or promulgate federal criteria by July 15, 2019. In June 2018, EPA requested the court modify the dates in the 2016 consent decree. The court granted the request. The new dates are November 15, 2022, for EPA to propose and November 15, 2023, for EPA to finalize federal criteria for Idaho in absence of EPA approval of a criterion adopted by Idaho. This rulemaking will enable Idaho to adopt human health criteria for arsenic under state rulemaking and may prevent federal promulgation of criteria for Idaho by EPA.

The text of the rule will be drafted by DEQ in conjunction with a negotiating committee made up of persons having an interest in the development of this rule. DEQ will explore the use of updated arsenic toxicity information and bioaccumulation factors to derive human health criteria for consumption of fish only and consumption of fish & water using Idaho specific inputs for cancer risk factor and fish consumption rates. In addition, DEQ will collect ambient water quality data to determine background concentrations of arsenic in Idaho waters and potential feasibility of achieving ambient water quality criteria derived for arsenic. Idahoans that recreate in, drink from, or fish Idaho’s surface waters and all who discharge pollutants to those same waters may be interested in participating in this rulemaking

Upon conclusion of negotiations, DEQ intends to publish a proposed rule for public comment in the fall of 2022 and then present the final proposal to the Idaho Board of Environmental Quality (Board) in November 2022 for adoption of a pending rule. If adopted by the Board, the rule will be reviewed by the 2023 Idaho Legislature.

Effective for Clean Water Act Purposes

Water quality standards adopted and submitted to EPA since May 30, 2000, are not effective for federal Clean Water Act (CWA) purposes until EPA approves them (see 40 CFR 131.21). This is known as the Alaska Rule. This rulemaking will be promulgated so that the existing rule, which continues to be effective for CWA purposes, remains in the Idaho Administrative Code until EPA approves the rule revisions. Notations explaining the effectiveness of the rule sections are also included. Upon EPA approval, the revised rule will become effective for CWA purposes and the previous rule and notations will be deleted from the Idaho Administrative Code. Information regarding the status of EPA review will be posted at here.

Method of Participation/Negotiated Rulemaking

Those interested in participating in the negotiated rulemaking process are encouraged to attend the meeting at one of the following locations. Additional meetings will be scheduled if necessary. The public may participate by telephone and web conferencing at any of the meeting locations or with individual connections. Individuals interested in participating by telephone and web conferencing should contact Paula Wilson by the date provided in the table below. For those who cannot participate by attending the meeting, written public comment opportunities will be made available throughout the negotiated rulemaking process.

Negotiated Rulemaking Meeting Schedule

No meetings scheduled at this time. 

*ORIGINATING LOCATION – LIVE MEETING*
DEQ State Office
Conference Center
1410 N. Hilton, Boise

November 29, 2018, 9 a.m.
to 12:30 p.m. MST

MEETING CANCELLED

The November 29 negotiated rulemaking meeting has been cancelled. DEQ will continue to monitor EPA progress on updates to the Integrated Risk Information System assessment of Inorganic Arsenic. DEQ will schedule additional rulemaking meetings as new information becomes available.

Contact Paula Wilson by November 21, 2018, to make arrangements for participation by telephone and web conferencing.

*TELEPHONE AND WEB CONFERENCE LOCATIONS*

DEQ Coeur d’Alene Regional Office
2110 Ironwood Parkway, Coeur d’Alene

DEQ Pocatello Regional Office
444 Hospital Way #300, Pocatello

The meeting locations will be accessible to persons with disabilities, and language translators will be made available upon request. Requests for these accommodations must be made no later than five days prior to the meeting date. For arrangements, contact Paula Wilson.

Previous Meetings

June 27, 2018 - Agenda | Sign-in Sheets
May 23, 2018
Agenda | Sign-in Sheets
April 19, 2018Agenda | Sign-in Sheets

Public Comment Opportunities

Submit all written comments by mail, fax or email to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481, paula.wilson@deq.idaho.gov

Discussion Papers and Meeting Presentation Documents

Meeting Presentation Documents Date Posted Date of Meeting Discussion Written Comment Deadline
Update to Human Health Criteria for Arsenic – DEQ PowerPoint Presentation 06/27/18 06/27/18 08/01/18
Update to Human Health Criteria for Arsenic – DEQ PowerPoint Presentation  05/23/18  05/23/18 06/06/18

Arsenic Human Health Criteria—Discussion Paper #1

Update to Human Health Criteria for Arsenic – DEQ PowerPoint Presentation

04/12/18

 
04/19/18

04/19/18

 04/30/18

Written Public Comments

Comment Submitted By Date Received
Comment on 6/27/18 meeting presentation J.R. Simplot Company 08/01/18
Comment on 6/27/18 meeting presentation Idaho Association of Commerce & Industry (IACI) 08/01/18
Comment on 6/27/18 meeting presentation Idaho Mining Association (IMA) 08/01/18
Comment on 6/27/18 meeting presentation Association of Idaho Cities (AIC) 08/03/18
Comment on 05/23/18 meeting presentation J.R. Simplot Company 06/06/18
Comment on 05/23/18 meeting presentation Association of Idaho Cities (AIC) 06/07/18
Comment on 05/23/18 meeting presentation Idaho Conservation League (ICL) 06/07/18
Comment on 04/19/18 meeting presentation Idaho Association of Commerce & Industry (IACI)  04/30/18
Comment on 04/19/18 meeting presentation City of Meridian 04/30/18
Comment on 04/19/18 meeting presentation J.R. Simplot Company 04/30/18
Comment on 04/19/18 meeting presentation Idaho Mining Association (IMA) 04/30/18
Comment on 04/19/18 meeting presentation Association of Idaho Cities (AIC) 04/30/18
Comment on 04/19/18 meeting presentation Clearwater Paper 04/30/18

Draft Negotiated Rule and Meeting Presentation Documents

Draft Negotiated Rule Date Posted Date of Meeting Discussion Written Comment Deadline
A preliminary draft rule has not been posted. Meetings have been scheduled for presenting information on arsenic toxicity, exposure factors, options for deriving criteria, and setting a path forward.  N/A  N/A  N/A

Background Information and Support Documents

Idaho DEQ Documents Date Posted

Concepts and Recommendations for Using the “Natural Conditions” Provisions of the Idaho Water Quality Standards, Idaho DEQ (April 2003)

06/27/18
Mercury in Fish Tissue – A Statewide Assessment of Rivers: Quality Assurance Project Plan (QUAPP) Summer 2008, Version 1.2, Idaho DEQ (October 28, 2008) 05/23/18
Arsenic, Mercury, and Selenium in Fish Tissue and Water from Idaho’s Major Rivers: A Statewide Assessment, Idaho DEQ (March 2010) 04/12/18

DEQ’s response to EPA’s disapproval (October 31, 2017)

04/12/18

EPA’s disapproval letter to DEQ (September 15, 2016)

 04/12/18

EPA’s approval letter to DEQ (July 7, 2010)

 04/12/18

DEQ’s submittal letter to EPA (June 21, 2010)

 04/12/18
Additional Information  
Preliminary Results: Demonstration of Nonanthropogenic Arsenic and  Nonanthropogenic Standard Selection – Yellowstone River – Montana DEQ PowerPoint Presentation (06/27/18 meeting)  06/27/18

Unopposed Motion to Modify Consent Decree, Northwest Environmental Advocates v EPA, U.S. District Court, District of Oregon (extending rulemaking deadline) (motion granted on June 15, 2018)

Consent Decree, Northwest Environmental Advocates v EPA, U.S. District Court, District of Oregon (June 7, 2016)

 06/27/18

 

07/18/18

Technical Support Document for Action on the State of Oregon’s New and Revised Human Health Water Quality Criteria for Toxics and Associated Implementation Provisions Submitted July 12 and 21, 2011, U.S. EPA Region 10 (October 17, 2011)

04/12/18

State of Oregon DEQ Draft Report - Water Quality Standards Review and Recommendations: Arsenic (April 2011)

04/12/18

 


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Staff Contacts

Water Quality Standards Lead
Jason Pappani
DEQ State Office
Water Quality Division
1410 N. Hilton
Boise, ID 83706
(208) 373-0515
jason.pappani@deq.idaho.gov

Administrative Rules Coordinator
Paula Wilson
DEQ State Office
Attorney General's Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0418
paula.wilson@deq.idaho.gov