Environmental groups warned Tuesday that a proposed rule by the Oklahoma Water Resources Board would give industry a pass on polluting Oklahoma’s most pristine waterways, while groups representing industry praised the proposed rules as a tool to help bring companies that discharge into the state’s waterways into compliance.
Meanwhile, OWRB staff members said they plan to bring back a set of proposed limitations on a number of chemicals — many of which are known carcinogens — already found or likely to be found in Oklahoma’s drinking water supplies and fish. The OWRB had proposed limits on those chemicals last year, but abruptly pulled them from consideration in December after an industry-backed group raised technical concerns about the proposal.
Tuesday’s OWRB meeting was standing-room only, as environmental and conservation groups, individual citizens and organizations representing industry waited their respective turns to provide public comment on the proposed rule amendments to the board.
The nine-member Oklahoma Water Resources Board, which among other things oversees water use permitting, water quality monitoring standards, and financial assistance for water infrastructure, will likely vote on whether to adopt the proposed rule revisions during its Feb. 19 meeting.
One set of proposed rules that drew the most comments from environmental and conservation groups Tuesday would allow the board to change the way it issues “variances” — temporary allowances of lower water quality standards for a particular pollutant or for a particular waterway.
Rebecca Veiga Nascimento, water quality standards program manager for OWRB, said the current variance requirements have made it essentially unusable, and adopting the U.S. Environmental Protection Agency’s variance requirements would provide OWRB with a useful tool to help bring wastewater dischargers that are out of compliance into compliance.
“It’s a tool that guides progress toward attaining a beneficial use and a criterion that is not currently being obtained,” Veiga Nascimento said. “The variance is applied as a temporary water quality standard so the responsible parties can make incremental improvements and improve water quality. The actions necessary to implement the variance must be included as enforceable permit conditions. A variance is not a free pass to dischargers and it is not applicable in all situations.”
Many of the comments submitted on the proposed variance rule expressed concern that the change would give free reign for entities polluting the state’s water to continue, said Bill Cauthron, chief of OWRB’s Water Quality Standards program.
“Let me say this in no uncertain terms: A water quality variance does not — does not — reduce water protection or allow pollution,” Cauthron said. “That is not what the water quality standards do. A variance does not allow a discharger to discharge at a greater level than they discharge now.”
“It’s a tool that is designed to help a discharger make incremental improvements in water quality over time,” he said. “And it’s really used when a waterbody already has an impairment, when it’s not meeting its (beneficial) use. It makes no logical sense to allow someone to discharge more of a pollutant when it’s already not meeting its (beneficial) use.”
Variances would also be subject to public hearings, approval by the OWRB and approval by the EPA before going into effect, Cauthron said, and the process would likely take more than a year to complete.
Though the language states a variance issued by OWRB must be reviewed every five years, it does not place a limit on the number of times a variance can be renewed. The proposed rule also does not contain provisions that would prevent variances from being issued on the state’s designated scenic rivers.
And for many environmental groups present at Tuesday’s meeting, that was cause for concern.
Mark Derichsweiler, vice-chair of the Oklahoma chapter of the Sierra Club, told the board that the rule was brought forth only after Oklahoma entered into an agreement with the state of Arkansas that contained provisions about Oklahoma changing its variance requirements. Arkansas and Oklahoma have been at odds for decades over chicken waste and discharged wastewater causing high phosphorus levels in the Illinois River.
“It’s no secret that this new variance proposal is being driven by large poultry corporations and northwest Arkansas development interests that have fought Oklahoma over clean water in our Scenic Rivers for decades,” Derichsweiler said. “A variance wasn’t even on the rule-making agenda until it appeared in the latest agreement between the states that was signed two months ago just as the previous state administration was headed out the door. It was quickly slapped on to the tail of the rule-making process already underway, rushed to publication, and here we are today.”
Derichsweiler said the board should not allow variances for scenic rivers, that the open-ended nature of the proposed variance would create unacceptable delays in compliance, that there is no mechanism to ensure eventual compliance and that variances should not be made for standards dealing with human health.
Ed Brocksmith, Tahlequah resident and founder of Save the Illinois River (STIR), said Oklahoma’s current phosphorus limits have not been enforced, and that the move is viewed by many as Arkansas attempting to again get around the limits.
“I don’t know if you are aware or not, but your phosphorus limit you passed and was fought for by our members and Sierra Club members and others, is still not being enforced by our state after nearly 20 years,” Brocksmith said. “At the state line today, that phosphorus standard is violated by more than 80 percent. At Tahlequah, it’s violated by more than 70 percent.”
“Here’s what we want from the state of Oklahoma, instead of a variance,” he said. “We want you to enforce the law, we want you to enforce the rule. We feel betrayed in many cases, by not only our own state agencies, but the federal government.”
Brocksmith also said the proposed rule may violate the Oklahoma Scenic Rivers Act, and requested that OWRB get an Attorney General’s opinion on the matter before proceeding.
Though most of the public comments Tuesday were opposed to the variance language, not all were against it.
Speaking in favor of the variance proposal was Howard “Bud” Ground, president of the Environmental Federation of Oklahoma, a trade organization made up of companies around the state that includes the largest industrial water users in the state, oil refineries, power plants, paper companies and other industries.
The proposed variance process would give entities discharging wastewater into the state’s waters time to come into compliance with water quality standards that might be difficult to meet, Ground said.
“This is why it is extremely important for the board to get the water quality standards correct. If they are too stringent, if they are more stringent than they need to be, if … the technology is not there to help industry comply, then we will be out of compliance and the only way we can comply is with a variance,” Ground said. “And we do not want to get in that situation. So that’s why we as industry come in and work very closely with staff to determine that exact number that will end up in our permits.”
In December, the Environmental Federation of Oklahoma expressed concerns to OWRB staff about a set of proposed rules that would have added 38 new chemicals and safe exposure limits to the state’s list of Human Health Criteria, which sets the highest concentrations of the chemicals that humans can be safely exposed to through drinking water or eating fish.
Of the 38 chemicals that were proposed to be added to the list, 18 are known carcinogens, according to OWRB, and each of the chemicals are either currently being discharged into Oklahoma waters, have previously been detected in water or fish, or are used or manufactured by industries located in Oklahoma.
Currently, the OWRB has 37 chemicals listed in its Human Health Criteria for water and in fish, though safe exposure amounts for chemicals on the current list would have also been updated using new measuring standards under the proposed rules.
The limitations were pulled at the last minute in December, after the Environmental Federation of Oklahoma raised technical questions about bioaccumulation of the chemicals, OWRB’s Cauthron said, though other groups had also expressed concern about the requirements. Bioaccumulation occurs as chemicals are transferred in the food chain from smaller organisms to larger organism, causing the chemicals to become concentrated in larger animals, and the bioaccumulation of each chemical varies.
“It was a concern that was expressed, so we wanted to fully vet that to see if it was a valid concern,” Cauthron said. “We had a very intensive technical discussion from some of the stakeholders that we did not think we could fully answer and explore in the timeframe left to us, which is why we withdrew those this year.”
The proposed human health criteria would have been the first major comprehensive change of the state’s Human Health Criteria since 1991.
Cauthron said the OWRB will likely bring a set of rules updating the Human Health Criteria this year and any rule changes on the issue would likely occur at the beginning of 2020.