State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: March 11, 2011

To:    Environmental Quality Commission

From:    Beth Moore

Subject:  Presiding Officer's Report for Rulemaking Hearing

Title of Proposal:  Revising Human Health Water Quality Standards for Toxic Pollutants

Hearing Date and Time:  February 10, 2011 6:00 p.m.

Hearing Location:    DEQ Headquarters

Room EQC-A (10th floor)

       811 SW 6th Ave.

   Portland, OR 97204

The hearings officer was Beth Moore. Twenty-seven people attended the hearing, eleven provided oral testimony and one person submitted 41 support letters. The department convened the rulemaking hearing on the proposal referenced above at 6:00 p.m. and closed it at approximately 7:52 p.m.

Beth announced that she was serving as the hearings officer for this public hearing. Beth introduced Andrea Matzke and Gene Foster from DEQ, who gave a short presentation summarizing the proposed rulemaking.

People were asked to sign registration forms if they wished to present comments. People were also advised that the hearing was being recorded.

Beth announced at 7:00 p.m. she would like to begin the formal hearing on the proposed rulemaking. She informed people that the hearing would be recorded and that testimony would become part of the public record for the rulemaking. Beth explained her role was to take testimony on behalf of the EQC and prepare a report summarizing the written and verbal comments. She asked that people interested in providing oral testimony fill out a witness registration form, and would call people to testify in the order they turned in the form. Beth added that written comments would be given the same weight as oral comments. Beth announced that that the deadline date for receipt of written comments on the proposed rules had been extended to March 21, 2011, at 5 p.m. and that there was an additional hearing scheduled in Salem (details to be determined). She clarified that the end of the public comment period for the proposed arsenic rulemaking will remain February 23, 2011.

She stated that after reviewing the comments, the department may consider revisions to the proposed rules. She added that the department's final recommendation for rule adoption will be made at the EQC meeting scheduled for June 16-17, 2011, and that the EQC can use its own discretion in deciding whether to adopt all, part or none of the proposed rules, postpone adoption, or hold additional public hearings.

Summary of the Testimony

Eleven persons provided oral testimony. Table 1 lists the names of those who provided testimony and the general position supported by each person.

TABLE 1: List of Commenters

The following is a summary of written and oral comments received at the hearing. The department will include these comments in the Summary of Comments and Agency Responses for this rulemaking.

Those testifiers who generally support the rulemaking included tribal members, several private citizens, an environmental organization, and an organization dedicated to protecting salmon and tribal treaty rights.

Several tribal members expressed support for the fish consumption rate. The Confederated Tribe of the Umatilla Indian Reservation (CTUIR) stated that the fish resource is not only a major food source for tribal members, but is also an integral part of their cultural, economic, and spiritual way of life. The Klamath Tribe said that tribal members are also farmers, ranchers and fishermen and believe that what Oregon is doing is something that's needed for all of us in this state, and all of us in the region. It's time that we move forward with this proposed rule, and increased water quality standards that are more protective of tribal people because they depend on these fish. He further stated that implementation of TMDLs are going to be an important part of this process in his geographic area.

The Confederated Tribes of Siletz Indians also expressed concerns regarding the proposed implementation-ready TMDL process, but stated they are willing to move forward with what has been proposed at this time. He further clarified that the past history of jurisdictional issues between DEQ, ODF, and ODA will not improve without additional clarity that ensures one agency or another must meet the standards through this process, and therefore protect the citizens of this state. The Siletz Tribe made a decision several years ago to enter the state's TMDL process for the mid-coast Region, rather than set water quality standards for the tribe's areas of interest because they wanted to be a partner with regional stakeholders, and a partner with the state.

The Confederated Tribes of Grande Ronde stated that the Willamette River was very contaminated and that fish that are on the reservation, which include salmon, steelhead, and lamprey have to travel through these contaminated waters. He expressed thanks and support for DEQ in developing these water quality standards over the past several years.

The executive director of the Columbia River Intertribal Fish Commission (CRITFC) said that out in the Pacific Northwest, and particularly along the Columbia, he knows families that eat a lot more than 175 g/day of fish. They have salmon every day, sometimes several times in the day, so this is not a standard that will protect all Indians; it's just an average. They applaud EPA's stance in trying to protect more tribal communities, and they also applaud Oregon for taking the stance to try and account for higher levels of fish consumption. CRITFC submitted forty-three letters in support of Oregon's water quality standards.

The Columbia Riverkeeper staff attorney believes that the rule package DEQ has proposed is a workable package and one that has had extensive amount of collaboration up to this point. She further emphasized that it is critical that the DEQ moves forward in a timely manner. She indicated that this rulemaking is the culmination of decades of research. EPA funded the Columbia River Inter-tribal Fish Commission to do a more extensive study to look into this issue, and CRITFC provided an in-depth study that showed that there was the presence of at least ninety-two contaminants in fish that were consumed by tribal members. In Oregon, we already live in a state with a number of fish advisories, where people are impacted on a daily basis in terms of whether they can go out and eat fish from rivers near their homes and where they work. In reference to the fiscal analysis, she believes that the analysis never looked at the economic benefits. It never quantified how much Oregonians will gain from having water bodies and fish that we can go out and, on a regular basis, eat, and be free of the fear of contamination.

A landowner discussed tribal rights. Tribal members have reserved rights to take fish exclusively within the reservations, as well as the right to take fish at all of their usual and accustomed fishing places. Tribes expected, and the United States agreed, to secure those rights, and those rights are meaningless if the fish are not fit to eat.

A recreational user stated that he has sailed extensively on the Willamette and Columbia Rivers and believes we can do a better job of improving water quality on the river. These rivers and their drainages are one of our greatest regional assets and these regulations will go a long ways to improving that.

Several testifiers voiced opposition to the proposed rulemaking. One landowner stated that Senate Bill 502 and 503 were passed by the legislature in 1995 to give ODA sole responsibility for developing and implementing their program. This legislation would clearly be violated if the Department of Environmental Quality established implementation-ready TMDLs. In addition, the DEQ's need to determine specific amounts of surrogate measures needed to achieve TMDL goals is one hundred and eighty degrees away from a cooperative method successfully used since Senate Bill 1010.

Clean Water Services stated that they are committed to effective toxic pollution control and gave examples of the innovative programs they are currently implementing. Their members have participated for a long time on the development of this rule package and they feel it fails to provide clear and effective implementation guidance and implementation programs. This rulemaking could force them into a situation where they spend a substantial amount of money on programs that are not effective at reducing toxics within the basin. They further recommended that the DEQ and the Environmental Quality Commission provide clear and effective guidance associated with this rule and, as much as possible, to integrate implementation guidance within the rule itself. Alternatively, DEQ needs to make sure that guidance is well developed as they review this rule package, and not to proceed with the rulemaking until it is clear on what that guidance contains. The testifier also suggested that the rulemaking should look at the basins more broadly (e.g. implement a watershed approach) and not focus solely on what a waste water treatment plant can provide.

There was no other testimony provided. The hearing was adjourned at approximately 7:52 p.m.