UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8 1995 Wynkoop Street Denver, CO 80202-1129 Phone 800-227-8917 www.epa.goviregion0s Ref: Refi 8P-W-WW February 1, 2016 Mr. Walt Baker, Director Division of Water Quality Utah Department of Environmental Quality 195 North 1950 West, DEQ 3rd Floor Salt Lake City, Utah 84114-4870 Dear Mr. Baker: Lam waiting to indicate that Senate Bill (S.B.) 110 pending in the 2016 Utah Legislature is of potential concer to the U.S. Environmental Protection Agency (EPA). EPA is reluctant to become involved with the actions of a State’s legislature; however, S.B. 110 appears inconsistent with certain federal Clean Water Act (CWA) requirements, If enacted as written, Utah may be unable to meet the public participation and point source permitting requirements of the CWA. In the spirit of partnership, we offer the following for your consideration. Public Participation Section 303(c) of the CWA requires states to “hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.” Pursuant to EPA's regulation at 40 C.F.R. § 131.20(b), when the State is revising a water quality standard, “the proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing.” §.B. 110 defines a “Proposal” to include “a proposed administrative rule ... that will change water quality standards.” Under the bill, only a “Challenging party” may seek peer review of such water quality standard changes, and only UPDES permittees may be challenging parties. If the independent peer review panel determines a change to a water quality standard is “not scientifically defensible” under Paragraph 7, the water quality standards change is no longer available for consideration by the board or the director pursuant to Paragraph 10. As a result, it appears such proposed changes and their supporting analyses, including the written peer review report, will not be made available to the public and will not be subject to a public hearing in contravention of § 303(c) and EPA’s implementing regulations. Section 402(b)(3) of the CWA also has a public participation provision, requiring states to have the authority to issue permits that “insure that the public. .. receive notice of each application for a permit and to provide an opportunity for public hearing before ruling on each such application.” While it is unclear from the language of S.B. 110 how the peer review provisions fit into the State’s permitting process, a “Proposal” ineludes any “permitting requirement” and only UPDES permittees may challenge such proposals. As a result, public input to subsequent permitting decisions is limited. The limiting of public participation occurs in two ways. First, under Paragraph 7 ifa peer review panel issues a written report that concludes a proposed permit requirement is “not scientifically defensible”, that permit requirement is a dead letter pursuant to Paragraph 10 of the statute and no longer available for consideration by the board or the director. In addition, under Paragraph 8 if a technology based effluent limit is found to be “not scientifically necessary to protect designated beneficial uses”, the challenging permittee is automatically granted a variance pursuant to Paragraph 11 exempting them from compliance with that effluent limit. If these statutory effects occur outside the State’s standard permit process, S.B. 110 effectively ensures that the public is excluded from significant permit decisions ‘without an opportunity for public comment or a public hearing in direct contravention of § 402(b)(3). UPDES Permitting Section 402(b)(1)(A) of the CWA requires states with authorized National Pollutant Discharge Elimination System (NPDES) programs to have the authority to issue permits that comply with § 301 of the CWA. Section 301(b)(1)(A) requires certain point sources to achieve technology based effluent limitations defined by EPA pursuant to CWA § 304(b). In the absence of regulations establishing such limitations, 40 CFR §§ 122.44(a) and 125.3 require point sources to achieve technology based effluent limitations (TBELs) established on a case-by-case basis using the permit writer’s best professional judgment (BPI). TBELs represent the minimum level of control to be applied in a permit and, under Section 301(b)(1) of the CWA, compliance with all TBELs is mandatory. S.B. 110 allows UPDES permittees to challenge the scientific basis for TBELs. The bill defines TBELs in a way that excludes EPA-approved effluent limitation guidelines, as well as state and federal secondary treatment limits for publicly owned treatment works. However, the TBEL definition includes, and UPDES permittees may challenge the scientific basis of, TBELs established pursuant to state law (eg., Utah Admin, Code R317-1-3.3.A), as well as TBELs established using BPJ. If a permittee challenges a TBEL established using BPJ and the independent peer review determines it is “not scientifically necessary to protect designated beneficial uses”, the challenging permittee is automatically ‘granted a variance exempting them from compliance with the TBEL limit that is mandatory under the CWA. Asa result, some of Utah's permits would no longer ensure compliance with CWA § 301(b)(1) (A), and Utah’s authorized NPDES program would no longer meet the minimum requirements of 402(b)(1)(A).. In sum, it appeats that S.B, 110is not consistent with certain requirements of the Clean Water Act relating to water quality standards changes, and may undermine the basis for Utah’s authorized UPDES program. I welcome your insights as to whether our understanding of the pending legislation is accurate, and the opportunity to work together to carefully consider the ramifications of the proposed statue. If you would like to discuss our comments or have questions, please contact me at (303) 312-6670; Colleen Rathbone, Wastewater Unit Chief at (303) 312-6133; or Everett Volk in our Regional Counsel’s Office at (303) 312-7290. Thank you. Sincerely, Humberto L. Garcia, Jr., Director Water Program Office of Partnerships and Regulatory Assistance a