State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: March 11, 2011

To:    Environmental Quality Commission

From:    Cheryll Hutchens-Woods

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 8, 2011 2:00 p.m.

Hearing Location:    St. Anthony’s Hospital

       Cascade Room (1st floor)

   1601 SE Court Ave.

       Pendleton, OR 97801
       

The hearings officer was Cheryll Hutchens-Woods. Twenty-six people attended the hearing, five provided oral testimony and one person submitted 15 support letters. The department convened the rulemaking hearing on the proposal referenced above at 2:00 p.m. and closed it at approximately 3:45 p.m.

Cheryll announced that she was serving as the hearings officer for this public hearing. Cheryll 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.

Cheryll announced at 3:20 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. Cheryll 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. Cheryll reminded the audience that the deadline date for receipt of written comments on the proposed rules is Monday, February 23, 2011, at 5 p.m. (this date was later extended to March 21, 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

Five 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. There were a total of five people giving testimony and of the five four commented in support of the rulemaking and one opposed the rulemaking.

Those who support the rulemaking were members of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), the environmental organization, Columbia Riverkeeper, and a private citizen who also presented 15 letters in support signed by various tribal members. Opposition to the rule came from the City of Pendleton.

The City of Pendleton commented in opposition to the rulemaking. Their representative pointed out that the limits for toxics in the proposed rule are not attainable by the city. The treatment technology is not available to go as low as the proposed limits. DEQ’s proposed variance procedure must be improved. The variance procedure will cost money, take staff time and result in no toxics reduction. The City is in the middle of a $15 million upgrade to their plant which will help the city remove ammonia but not specifically address toxics. In addition, the City commented that toxins should be removed before they get the plant; the toxins need to be stopped at the source at the watershed level.

The CTUIR commented that the proposed rule is more protective of tribal members and other citizens of Oregon who eat fish. The Tribe has worked with the State, EPA, and other interested stakeholders to increase the fish consumption rate to better reflect the amount of fish consumed by tribal members. They believe that the proposed rate is a fair and reasonable number and it is already a substantial compromise. When the Tribe signed the Treaty of 1855 they understood that the fish would be safe to eat. They also pointed out that water and fish are the first of their first foods and are not just valued as natural resources but also for their cultural and religious values as well. Finally, they commented that the higher fish consumption rate is designed to protect Oregon’s more sensitive fish consumers and is similar to Oregon’s decision to adopt Air Quality standards that protect people with asthma.

The commenter on behalf of Columbia River Keeper stated on behalf of their three thousand members they support the proposed rule. Twenty years ago, there were studies showing that the assumption of how much fish people eat is not true. The assumption of how much fish people eat is important, because it controls how much toxics are allowed to be discharged. With this rule Oregon is poised to become a leader in water quality standards and we should take pride in this. Telling people that we shouldn’t eat fish is not an acceptable solution. Reducing toxins is necessary to protect people who are eating fish; it is a matter of environmental justice and a matter of fairness.

The environmental group did have some criticism of rule. The rule exempts stormwater. Stormwater contains toxics gathered as the rain runs off industrial and urban lands. They believe that the rules should apply to stormwater. They also have concerns with the variance procedures.

The final commenter in support of the rule pointed out that even living in Pendleton, the high desert he still managed to eat a lot of seafood. The commenter supports the proposed rule and consumption rate and pointed out that the old rate did not really reflect what Oregonians ate, the average, non-Indian Oregonians. The new rate does not reflect the consumption of Native Americans, Asian Americans, nor Eastern Europeans. The commenter presented fifteen written testimonies in support of adopting the proposed rate.

There was no other testimony provided. The hearing was adjourned at approximately 3:45 p.m.