State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: March 9, 2011

To:    Environmental Quality Commission

From:    Eric Nigg

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 1, 2011 1:00 p.m.

Hearing Location:    Oregon Department of Transportation Office

   Deschutes River Room
   63055 N. Highway 97

Bend, OR 97701    

This hearing was held in Bend and the hearings officer was Eric Nigg. Twenty-eight people attended the hearing and four people provided oral testimony. The department convened the rulemaking hearing on the proposal referenced above at 1:00 pm and closed it at 2:55 pm.

Eric Nigg announced that he was serving as the hearings officer for this public hearing. Eric introduced Andrea Matzke and Koto Kishida 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.

Eric announced at approximately 2:35 p.m. he would like to begin the formal hearing on the proposed rulemaking. He informed people that the hearing would be recorded and that testimony would become part of the public record for the rulemaking. Eric explained his role was to take testimony on behalf of the EQC and prepare a report summarizing the written and verbal comments. He 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. He added that written comments would be given the same weight as oral comments. Eric reminded the audience that the deadline date for receipt of written comments on the proposed rules is Wednesday, February 23, 2011, at 5 p.m. (this date was later extended to March 21, 2011). He stated that after reviewing the comments, the department may consider revisions to the proposed rules. He 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

Four 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.

Chris Gannon: Crooked River Watershed Council – submitted written comments in addition to verbal testimony

The Watershed Council works with local landowners in partnership with other local state and federal agencies. They are very involved in improving water quality, but are concerned that the proposed toxics rules will have unintended consequences and unknown economic impacts. They request that DEQ delay adoption until it has considered what the economic impacts of the rules may be. They are also concerned with indirect consequences of the more stringent rules, including increases in fish advisories and residues of toxic pollutants in by-products of fish harvesting. These could have a dampening effect on beneficial uses of these by-products. The council is not convinced there will be any human health benefit to the proposed consumption rate.

They provide alternatives to the rule including site-specific rules in areas that would likely expose tribal populations or an outright ban of certain toxic chemicals. In closing, Mr. Gannon suggested we consider a philosophical construct of Raymond C. P. Beamesderfer entitled “Deciding When Intervention is Effective and Appropriate." It is a systematic decision making process to determine for a given case if (1) the problem being addressed is significant enough to warrant action, (2) the solution being proposed is effective in fixing or significantly reducing the size of the problem, and (3) the biological benefits of the action outweigh costs as well as social and political considerations.

Jerry Brummer: Public Works Superintendent for the City of Prineville– submitted written comments in addition to verbal testimony

The City of Prineville is excited about ongoing water quality improvements it has constructed and will continue to invest in facilities that improve water quality. Prineville currently has an unemployment rate near 20% and some of the highest sewer service rates in the state. Mr. Brummer described several projects the city is constructing including wetlands for improved wastewater treatment, repair of sewer collection pipes to reduce inflow and infiltration during winter, and stormwater planning. The City is concerned that the DEQ has underestimated the impacts of these new rules and will not be adequately staffed to implement them including more complicated permitting, requirement for variances for permittees, development of basinwide pollution reduction plans all of which will increase costs to permitted sources. They are concerned that there is no effective and feasible technology for treating wastewater sufficiently to meet the proposed rules for legacy pesticides and PCBs.

Bruce Jim: Confederated Tribes of the Warm Springs and Chairman of the Columbia River Inter-Tribal Fish Commission– submitted written comments in addition to verbal testimony

Mr. Jim expressed support for the proposed fish consumption rate of 175 grams per day. This was based on a study that determined 23 eight-ounce servings of fish per month is “a realistic value that represents the fish consumption habits of our people.” The consumption of fish is not only a major food source for tribal members, it is also an integral part of our cultural, economic, and spiritual well-being. Current national estimated fish consumption rates are simply not sufficient to protect our tribal peoples residing in the Columbia River Basin, or other people that consume healthy amounts of fish. I urge the DEQ to adopt the standards that are based on these proposed reasonable and reliable measures of fish consumption by the residents of Oregon.

It seems the tribes are targeted as responsible for some of this. Tribal people in this basin have an important stake through treaty rights, but also have done a lot of work to improve fisheries, water quality and the land. Tribal members have always considered the importance of environment to the headwaters of streams and this has been beneficial to water quality protection. When they do this, it benefits all people in the basin, not just tribal members.

Chuck Lang: Prineville Resident

There are global sources of DDT and PCB that impact ocean food chains including those of salmon. These sources will eventually be reduced or eliminated followed by a painfully slow degradation of the chemicals and concentrations in salmon will follow. This will happen regardless of the proposed consumption rates and related toxics criteria. Including these new salmon consumption rates is not supported by science. He suggests this is why EPA is not recommending applying these rates to marine salmon and consumption of marine species. He also suggests that studies should be undertaken to determine if juvenile salmon are contaminated before they reach the estuary. While the higher consumption rate may be justified to generate health advisories, using it for inland water quality criteria calculations is premature.

There was no other testimony provided. The hearing was adjourned at 2:55 pm.