State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: March 11, 2011

To:    Environmental Quality Commission

From:    Steve Schnurbusch

Subject:  Presiding Officer's Report for Rulemaking Hearing

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

Hearing Date and Time:  March 7, 2011 5:30 p.m.

Hearing Location:    Labor & Industries Building

350 Winter Street NE, Room 260

       Salem, OR 97309

The hearings officer was Steve Schnurbusch. Twenty-four people attended the hearing, eleven provided oral testimony. The department convened the rulemaking hearing on the proposal referenced above at 5:30 p.m. and closed it at approximately 7:48 p.m.

Steve announced that he was serving as the hearings officer for this public hearing. Steve introduced Jennifer Wigal 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.

Steve announced at 6:48 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. Steve 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. Steve added that written comments would be given the same weight as oral comments. Steve announced that the deadline date for receipt of written comments on the proposed rules is March 21, 2011, at 5 p.m. 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

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.

Eleven people testified at the hearing with four opposed to it and seven people in favor of it. Four of those in support of the rulemaking are associated with the tribes. They stated the consumption rate of 175 g/day is a reasonable value to use that would be protective of the majority of their members. Fish are a major source of food for the tribes just as meat is for a large portion of Americans. Fish are also an integral part of their culture and used for ceremonial purposes. They mentioned there are other ethnic groups who are subsistence fishers and this rule would be protective of them as well. They state there are studies that show some toxics are building up in fish tissue and present in the water column, so now is the time to act on these new standards before it is too late.

The Sierra Club was in support of the proposed rule. They were involved with the adoption of Senate Bill 737 which was aimed at toxics monitoring for domestics sources. They feel this rule will push industrial sources to reduce toxic pollutants in their effluents. They also expressed concern about DEQ needing to work closely with ODA and ODF in improving implementation of non-point strategies for reducing toxics.

EPA stated that if DEQ did not adopt these new rules that EPA would be forced to promulgate new rules for the state. In general, they believe states are in the best position to adopt and implement new standards. EPA stated the consumption rate of 175 g/day is the appropriate value to use. They also stated Oregon’s proposed rule provides some innovative compliance tools that EPA would not be proposing if they were forced to promulgate the new standards.

The Association of Clean Water Services expressed support for reducing toxics. They feel all pollution sources need to be involved in reducing toxics pollutants. They support the rule revision for non-point sources but feet the language needs to be stronger. They believe there needs to be an implementation strategy for each category of pollutant that will outline the overall strategy for reducing toxics. They state that end of pipe treatment is not necessarily feasible or the most cost effective way to reduce toxics. They would like to see a comprehensive toxics reduction program prior to the adoption of the revised standards. They are also concerned about the use of variances because they are burdensome and expensive to develop and will not resolve the underlying water quality issues.

Northwest Environmental Advocates are opposed to the variance provisions incorporated into the rule as they feel these are loopholes for point sources. They also feel the rule does not have strong enough language for controlling non-point sources of pollution. Overall, they feel this rule will have little, if any, environmental improvements.

Westside Economic Alliance expressed concerns regarding the costs of these new regulations and whether we really know what the problem is that we’re trying to solve and what is the goal and how do we measure success. They also are concerned about the validity of the fish studies used to determine the fish consumption rate regarding anadromous versus resident fish. They want to know whether a distinction was made between consumption of anadromous fish and resident fish because salmon spend such little time in fresh water where the new standards would apply.

Senator Whitsett opposed the proposed rule primarily because the scientific studies used to establish the fish consumption rate were lacking in merit. He questioned some of the methods used in surveying participants, noting in one study that data was only collected over a two-day period. He also noted that low income individuals were oversampled to ensure their representation in the survey. In addition, he noted another study reported that some of the fish consumed may not be found in Oregon waters.

Another commenter stated DEQ needs to address toxics in sediment and do more to address non-point sources. The commenter did not support variances.

There was no other testimony provided. The hearing was adjourned at approximately 7:48 p.m.