Posted on November 26, 2019 by David Flannery
In an earlier blog, I raised the question of “When Should A Regulatory Program Be Eliminated”. After a four-year effort, three public comment periods, four hearings and six webinars, the Ohio River Valley Water Sanitation Commission (ORSANCO – the interstate compact that regulates the water quality of the Ohio River) acted in June 2019 to answer this question. ORSANCO did so by revising its Pollution Control Standards to make it clear that while its Ohio River numerical water quality criteria would remain in place, the designated use for the Ohio River established by the ORSANCO Compact would be the primary mechanism by which ORSANCO would protect the quality of the Ohio River.
In explaining the significance of its decision to leave its numerical water quality criteria on-the-books, ORSANCO offered the following sentence making it clear that its standards were to be considered by member states but were not mandatory:
The standards were adopted by the Commission for use or consideration by signatory States as they develop and implement their programs to assure that those designated uses and other goals regarding pollution control and prevention set forth in the Compact will be achieved. Emphasis added.
At its meeting in October 2019, ORSANCO adopted the process by which it would assess the consistency of the state-issued NPDES permits with its revised Pollution Control Standards. Under that review process, ORSANCO’s staff will review the conditions on permits issued by member states and will compare those permit conditions to what they would have been had the ORSANCO numerical water quality criteria been applied. If the state-issued permit contains any less stringent conditions, the state will be given the opportunity to explain how the terms of its permit would protect the designated uses of the Ohio River established by its Compact.
In short, while the ORSANCO numerical water quality criteria will continue to be available for “consideration” by States, the only mandatory duty imposed on the member states is the issuance of permits that are protective of the designated uses that the ORSANCO Compact has assigned to the Ohio River.