Water board pulls rules to set safe limits on chemicals found in water, fish

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The Illinois River in Adair County. CLIFTON ADCOCK/The Frontier
The Oklahoma Water Resources Board abruptly delayed bringing forward a set of proposed rules designed to limit human exposure to more than three dozen separate toxic chemicals that are already present or have a likelihood of showing up in the state’s water and fish.

The proposed rules 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.

States, which set the rules for their own water quality standards, are required by the U.S. Environmental Protection Agency to review their water quality standards every three years. Water Resources Board staff used the EPA’s formulas and standards to develop the proposed standards for the new chemicals and to amend old entries. Once added to the list, the Human Health Criteria amounts of each chemical can then be used to determine whether an entity discharging that chemical into the water might be endangering public health.

The proposed rules would have been the first major comprehensive review of the state’s Human Health Criteria since 1991.

“This would have been the first comprehensive update where we looked at all of the various parameters and pollutants that were recommended by the EPA to be adopted by the states,” said Monty Porter, assistant chief of water quality for the OWRB.

Only minor changes to the list have occurred in those 27 years, according to OWRB, and during that time, the types of chemicals used in a range of industries and activities have both increased and changed, warranting a comprehensive review of the criteria, according to OWRB.

The OWRB held several public meetings this year over its proposed rules for 2019 and the additions to the Human Health Criteria, and the proposed rule changes were even published in the Dec. 3 edition of the Oklahoma Register.

However, the proposed list was halted from going through the full rulemaking process at the last minute after the OWRB was approached by stakeholders concerned about the proposed limits on the pollutants.

“It never went through to the point of formal rulemaking in terms of rulemaking intent. We pulled it back,” Porter said. “We had some questions that arose from various stakeholders. We wanted to make sure we worked through it with them. We need a little more time than this rulemaking will allow us to do.”

Porter declined to elaborate on who the stakeholders were, but said their concerns were over the science used to determine the criteria for each pollutant.

“There were questions about the science involving some of the input parameters to calculate the criteria,” Porter said. “We are going to continue to work with stakeholders to listen to their concerns, to deal with some of the issues they might have.”

Most of the science used to develop and refine EPA’s Human Health Criteria formulas is solid, Porter said, based in academic research and heavily peer-reviewed by science advisory boards and experts from outside of the government.

“So, oftentimes when you look at the science behind these values, they’re very well developed. It’s not something considered questionable,” Porter said. “Sometimes there’s some of those input parameters that we can discuss with our stakeholders and determine what’s the best path for Oklahoma to go forward with.”

Mark Derichsweiler, a former water quality engineer for DEQ and current vice-chair and legislative coordinator for the Oklahoma branch of the Sierra Club, said the stakeholders behind the last-minute pulling of the proposal likely were tied to industries in the state that discharge chemicals into the water.

“They (OWRB staff) had already done all the work,” Derichsweiler said. “Somebody from part of the dirty water lobby — I don’t know who it was — talked to somebody and it was completely dropped.

“The regulated community objected to this and it was just unceremoniously dropped.”

Porter said the OWRB staff plans to bring the proposed water quality standards back next year to go through the rulemaking process.

“We’re working with stakeholders right now to look at those input parameters, hear them completely and that we act on those concerns appropriately,” Porter said.

The delay does create concern about potential health effects Oklahomans might suffer, but there is also concern about getting the acceptable safe amounts right, Porter said.

“I would say the concerns are we want to make sure we’re protecting human health, and some of these we know are currently being discharged into Oklahoma water bodies,” Porter said. “We want to make sure we’re updating water quality standards and providing water quality standards that protect the citizens of Oklahoma.

“So yes, there is a concern with delaying them, but there is also a concern with making sure we get it right. Part of that is making sure the stakeholders and the process we go through is fully vetted. At the time we were going to bring these rules forward, we felt like we needed to take a step back and continue that process to make sure these were done correctly.”

One proposed OWRB rule that is still alive, and is currently open for public comment, is a change to water quality variances — temporary permits that allow entities discharging into public waters to exceed specified amounts of nutrients or chemicals while the variance is in place.

Currently, there are strict limits on how a variance can be issued, what reasons it can be issued for and is time-limited to three years. The proposed rule, which does not have a specific time limit included, adopts the EPA’s current variance requirements, which are less stringent than the state’s, and would give OWRB much more leeway on the parameters of variances issued. No variance has been issued under the current rules.

“What we wanted to be able to do is adopt the federal language, which gives us more flexibility,” Porter said.

Any variances would still have to go through the administrative rules process, Porter said, and would have to be open for public comment, and approval by the OWRB, the Legislature, the Governor and the EPA.

“It’s not something we can do off-hand,” Porter said. “They’re not something that would be an off-hand type change to the water quality standards. They require the same process as any other revision of the water quality standards. This expands the rules out to allow us to utilize them in various ways. It puts another tool in the toolbox.”

Derichsweiler said the proposed rule could give some entities that discharge waste into Oklahoma waters a pass.

“It’s a way for the dischargers to legally continue to pollute the rivers without having to do anything about it,” Derichsweiler said. “There’s no restriction on how long the variance can last, and it’s renewable. So even if you let it last for five years, they can come back and apply for a renewal at the end of five years and so just continue indefinitely. That’s a problem.”

The Kiamichi River just north of Moyers. CLIFTON ADCOCK/The Frontier

Derichsweiler also said the proposed rule, which was only brought up at OWRB’s last public meeting on proposed rules in October, was likely to help facilitate one of Oklahoma’s concessions to Arkansas in a recent interstate agreement on water quality of the Illinois River and its tributaries, which has been affected by phosphorus from chicken waste and wastewater treatment facility discharges in Arkansas.

“The reason they’re doing this is because of that agreement between Oklahoma and Arkansas that Secretary (of Energy and Environment Michael) Teague negotiated with the Arkansas agencies,” Derichsweiler said. “In the provisions in that agreement are that Oklahoma would review our standards for the Illinois River and other scenic rivers and look at this variance procedure. It was a commitment made at the last minute on our part.

“This is all being driven by the phosphorus in our scenic rivers,” he said. “That’s why Arkansas wants this variance, so they wouldn’t have to meet that standard. They could get a variance, which is in essence they adopt what the water board says is a temporary standard that would be less stringent but wouldn’t require anything else.”

Porter said the rule change proposal was not spurred by the interstate agreement and that OWRB has been looking at changing the procedure for a few years now, since the EPA changed its variance rules and requirements in 2015.

“This is something we were doing anyway,” Porter said. “The federal regulations for standards changed two or three years ago, and this is something we’ve been meaning to change since to allow for more flexibility in the variance process in our own rules.”

The proposed rule, and other proposed OWRB rules, are open for public comment until Jan. 17, and a the OWRB will present the rules for public comment during its Jan. 15 meeting. It will likely consider adoption of proposed rules during its February meeting.

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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