State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: February 16, 2011

To:    Environmental Quality Commission

From:    Jane O’Keeffe

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 16, 2011 1:30 p.m.

Hearing Location:    DEQ Headquarters, Rm EQC-A (10th floor)

   811 SW 6th Ave.
   Portland, OR 97204    

This hearing was held in front of the Environmental Quality Commission. The hearings officer was Jane O’Keeffe, a member of the EQC. Sixty-four people attended the hearing, 35 provided oral testimony, and 96 written comments were submitted (94 people signed a form letter). The department convened the rulemaking hearing on the proposal referenced above at 1:30 pm and closed it at 4:30 pm.

Jane O’Keeffe announced that she was serving as the hearings officer for this public hearing. Jane 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. Sixteen of the testifiers did not sign in, but were counted as part of the total attendees. People were also advised that the hearing was being recorded.

Jane announced at approximately 1:45 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. Linda 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. She added that written comments would be given the same weight as oral comments. Jane reminded the audience that the deadline date for receipt of written comments on the proposed rules is Monday, March 21, 2011, at 5 p.m. 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

Thirty-five persons provided oral testimony, and 96 written comments were submitted by persons who did not testify, with one of the three written comments being a form letter that was submitted by ninety-four people supporting the rulemaking. 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. The list of testifiers was fairly evenly distributed between those who generally support the rulemaking and those who do not support the rulemaking.

Those who support the rulemaking were members of tribes and several environmental organizations. Tribal members expressed the need for DEQ to protect the health of those Oregonians who regularly consume fish and shellfish—tribal members, other ethnic groups, and Oregonians who choose to eat more fish. Tribal members expressed that fish are not only a major source of food, but are also an integral part of their cultural, economic, and spiritual well-being. Some tribal members felt that treaty-protected rights to take fish are threatened if the fish and waterways are contaminated. Supporters state that a fish consumption rate of 175 g/day is a reasonable and protective value to use as the basis for Oregon’s human health toxics criteria. Tribal members and environmental groups feel that the information and data contained in the CRITFC study and the other studies examined to develop a fish consumption rate are scientifically defensible. One environmental group member expressed that addressing toxics in fish that we eat is an environmental justice issue, while another environmental group representative was disappointed that members of the various workgroups involved in the rulemaking are now attacking the rule. The Chairman of the Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation submitted ninety-four letters of support from primarily tribal members residing in Oregon and Washington.

The Columbia Riverkeeper environmental organization strongly supports going forward with this rulemaking, although they feel there are flaws contained in the rule. For example, stormwater discharges are not considered in this rule, and the rulemaking fails to address nonpoint sources of toxics in any meaningful way because the changes DEQ is proposing to make, simply re-state statutory requirements.

Opponents of the rulemaking mainly consist of municipalities, agricultural and forestry interests, and private landowners. The cities stressed that they are committed to toxics reduction, as evident in the various pollution reduction strategies and programs that are currently being implemented. However, it would be far more effective to go after the sources of the toxic pollutant. Without the active participation of forestry and agriculture, the water quality objectives will never be met. Once the pollutant is in the waste stream, some of these toxic chemicals are either impossible to remove or are very expensive to treat. Some of the commenters discussed the results of an independent analysis which indicated that most of the POTWs will exceed new water quality criteria for mostly legacy pesticides and PCBs from human waste. In addition, chemicals such as DDT and plasticizers are found everywhere in the environment, in people, and in wastewater effluent at low levels.

Many cities and the Association of Clean Water Agencies (ACWA) remain concerned that variances are not a viable or appropriate tool for resolving water quality objectives. As variances may be the primary compliance tool for municipalities, there is concern about how the variance process will be administered and question whether DEQ water quality staff will be able to accomplish expected workload increases in reviewing variances. Many municipalities indicate that the costs to request and approve a variance have been underestimated by DEQ and that the expenditure of funds could potentially divert ratepayer investments from other investments that would have greater water quality benefits. ACWA and several of the municipalities recommended that the EQC direct DEQ to develop a specific implementation plan by category of pollutant to indicate which CWA tool could be used to meet the underlying water quality criteria, including TMDLs, use of site specific criteria, or a use attainability analysis.

The remainder of the rulemaking opponents consisted of forestry and agricultural interests. All expressed frustration that the efforts by many landowners to install or implement various best management practices to reduce nonpoint sources of pollution are being ignored by DEQ. Another point of contention expressed by the Oregon Farm Bureau, SWCDs, the Oregon Cattlemen’s Association, and a number of landowners was the belief that the proposed rule language in Division 41 and 42 regarding nonpoint sources is a direct challenge to the statutory and regulatory authority given to the ODA by Senate Bill 1010. Many commenters feel that the current relationship and process between ODA staff and landowners works well and would destroy the cooperation and trust that has taken years to establish.

Northwest Pulp and Paper Association recognizes the challenges faced by dischargers and the department and believes there are other options available. These ideas will be submitted before the end of the comment period.

One person from the Cascade Policy Institute vigorously questioned the scientific validity of 175 g/day. She indicated that the CRITFC study is over 20 years old and that the fish consumption rate should be recalculated based on current data. In addition, salmon should not be included in the fish consumption rate because they spend the majority of their life cycle in the ocean where Oregon water quality standards do not apply.

There was no other testimony provided. The hearing was adjourned at 4:30 pm.