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

Negotiated rulemaking meeting November 5, 2020, to be held via telephone and video conferencing.

Board of Environmental Quality Meeting/Updates on Negotiated Rulemaking

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 scheduled meeting via telephone and video conferencing. Individuals interested in participating should contact Paula Wilson. For those who cannot participate by attending the meeting, written public comment opportunities will be made available throughout the rulemaking process. Any additional meetings will be posted below. To sign up for email notifications, contact Paula Wilson.

Negotiated Rulemaking Meeting Schedule

MEETING SET FOR PUBLIC PARTICIPATION VIA TELEPHONE AND VIDEO CONFERENCING

November 5, 2020, 9 a.m. to 12:30 p.m. MST

Contact Paula Wilson to sign up for participation by telephone and video conferencing.

In an effort to reduce and slow coronavirus spread, DEQ will hold this meeting via telephone and video conferencing. Language translators will be made available upon request.  Requests must be made no later than five (5) days prior to the meeting date.  For arrangements, contact Paula Wilson

Previous Meetings

July 15, 2020 - Agenda | Participant List
April 15, 2020 -
Amended Agenda | Participant List
November 20, 2019 - 
Agenda | Sign-in Sheets
July 23, 2019 - Agenda | Sign-in Sheets
June 27, 2018 - Agenda | Sign-in Sheets
May 23, 2018 - Agenda | Sign-in Sheets
April 19, 2018 - Agenda | 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

Rule Documents and Meeting Presentations

Rule Documents and Meeting Presentations Date Posted Date of Meeting Discussion Written Comment Deadline

Revision of Idaho’s Human Health Criteria for Arsenic – DEQ PowerPoint Presentation July 15, 2020

7/16/20 7/15/20 8/12/20

Revision of Idaho’s Human Health Criteria for Arsenic – DEQ PowerPoint Presentation April 15, 2020

4/27/20 4/15/20 4/30/20

2019 Arsenic Accumulation in Fish Tissue: Preliminary Monitoring Results, DEQ March 2020

3/12/20 4/15/20 3/27/20

Revision of Idaho's Human Health Criteria for Arsenic - PowerPoint Presentation November 20, 2019

11/21/19 11/20/19 12/6/19

Revision of Idaho’s Human Health Criteria for Arsenic – DEQ PowerPoint Presentation July 23, 2019

Probabilistic Arsenic Accumulation Sites

Targeted Ambient Arsenic Monitoring  Site Locations

7/24/19  7/23/19 7/31/19

Statewide Arsenic Monitoring to Support Human Health Criteria Updates -  Discussion Paper #2

Idaho Arsenic Survey Design 2018

7/18/19  7/23/19 7/31/19
Update to Human Health Criteria for Arsenic – DEQ PowerPoint Presentation June 27, 2018 06/27/18 06/27/18 08/01/18
Update to Human Health Criteria for Arsenic – DEQ PowerPoint Presentation May 23, 2018  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 April 19, 2018

04/12/18

 
04/19/18

04/19/18

 04/30/18

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

Written Public Comments

Comment Submitted By Date Received
Comment on 4/15/20 meeting presentation Association of Idaho Cities (AIC) 4/30/20
Comment on 4/15/20 meeting presentation JR Simplot Company 4/30/20
Comment on 2019 Arsenic Accumulation in Fish Tissue: Preliminary Monitoring Results J.R. Simplot Company 4/10/20
Comment on 11/20/19 meeting presentation J.R. Simplot Company 12/6/19
Comment on 7/23/19 meeting presentation U.S EPA Region 10 8/2/19
Comment on 7/23/19 meeting presentation Association of Idaho Cities (AIC) 8/1/19
Comment on 7/23/19 meeting presentation J.R. Simplot Company 7/31/19
Comment J.R. Simplot Company 7/16/19
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

Background Information and Support Documents

Idaho DEQ Documents Date Posted

Preliminary Fish Tissue and Targeted Water Data (Excel file)

 04/27/20

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

Surface Water Bureau Chief
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