State of Oregon

Department of Environmental Quality  Memorandum

Presiding Officer's Report

Date: April 11, 2011

To:    Environmental Quality Commission

From:    Pamela Blake

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 3, 2011 1:30 p.m.

Hearing Location:    City Hall, Council Chambers

       500 Central Ave.

   Coos Bay, OR 97420
       

The hearings officer was Pam Blake. Twenty-one people attended the hearing, eight provided oral testimony. In addition, seventy-nine form letters in support of the rulemaking and a resolution signed by the Affiliated Tribes of NW Indians were submitted. The department convened the rulemaking hearing on the proposal referenced above at 1:30 p.m. and closed it at approximately 3:45 p.m.

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

Pam announced at 3:15 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. Pam 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. Pam 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

Eight 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. Seven of eight persons testifying support the rulemaking.

Those who support the rulemaking were tribal members, a private citizen, and a Director of the Coos Soil and Water Conservation District. The entity in opposition represents a local family business.

The Confederated Tribes of the Coos, Lower Umpqua, and Siuslaw support the proposed rule and the Tribal Council has passed a resolution in support. A letter of support was also sent to Oregon Environmental Quality Commission Chairman Blosser. The Confederated Tribe is currently developing their own water quality standards applicable to waters present within reservation lands. These standards will reference the same consumption rates that the state of Oregon is proposing. The tribe has long standing traditions honoring salmon and the cycle of life which they represent. In order to preserve and restore the tribe’s culture the tribes need to consume fish and shellfish at traditional levels without fear of toxins. Fish and shellfish are important to Oregonians and the financial commitment has been significant. The proposed consumption rate represents a balance between a higher more protective rate and the lower consumption rates currently being applied. The Coquille Tribe agrees with and supports the statement provided by the Confederated Tribes.

The Confederated Tribes of the Umatilla Indian Reservation support the consumption rate in the proposed rule. The Umatilla Tribe has adopted a much higher consumption rate but because the tribe agreed to work in partnership and tribal elders are committed to continue planning for the future and future generations they can accept the proposed consumption level in the rule. Although this will mean more regulation, future generations need clean air, water, and land. The Affiliated Tribes of Northwest Indians passed a resolution supporting the adoption of the rule to better protect tribal first foods, and the native people who depend upon them. This individual also spoke as a homeowner and owner of a small acreage farm with irrigation right in support of the rule.

The coordinator for the Columbia River Intertribal Fish Commission (CRITFC) stated that water quality is a key component in the conservation and restoration of salmonid habitat and natural production. The adoption of the proposed fish consumption rate is a critical first step to improve water quality, protect fisheries, and tribal members. The CRITFC coordinator stated that studies conducted to examine fish consumption rates are scientifically defensible and that DEQ’s Human Health Focus Group determined that the fish consumption survey accurately represented the habits of tribal peoples. Of those surveyed 97% eat fish and based on stated consumption levels rule would protect 95% of tribal member’s health. Other fish surveys looked at other cultures and determined that these cultures also consume fish at the similar levels as Oregon tribes. She also stated that even though salmon spend a great deal of their lives in the ocean, tests of juvenile fish show they contain some contaminates.

A Confederated Tribes of the Coos, Lower Umpqua, Siuslaw council member and parent of an autistic child spoke specifically about mercury. He stated that US Department of Education data identifies autism as the fastest growing developmental disability and that mercury detoxification as a treatment received a far higher effectiveness rating than any drug supplement or special diet. Tests show that babies with autism have only one eighth the amount of mercury in their hair as normal babies do, so perhaps their ability to excrete heavy metals is impaired. Autistic baby's teeth have an average of three hundred percent more mercury than normal babies. He identified this as a group of individuals that are more severely impacted than the national average. He voiced his support for increased surveillance, regulation, and testing.

A private citizen in support of the rule vocalized concerns that conditions will not improve unless additional baseline data is collected. She stated that reduced fishing is indicative of a problem and water quality is a contributor. She stated her concern that the needed monitoring will not get done because DEQ lacks adequate staffing and funding for monitoring and clean up. She supports the rule but emphasized that it needed to be followed up with testing and cleaning up the water.

A Director of the Soil and Water Conservation Service stated that many, including DEQ, have known about local mercury problems for years and have not figured out where it is from or what to do about it. He expressed concern about the adverse impacts of mercury exposure on salmon eggs, smolt, and adults as well as other fish are present in contaminated areas. He stated that Forestry and DEQ know about this and do nothing because it is too expensive to clean these streams. He agrees with the rule but stated that we need to try and remove some of the mercury we know about although some of it may be natural and there might not be anything that can be done. Although in agreement with the rule he stated that most of the fish either comes from or spend a lot of their lives somewhere else. He stated that when algae are tested you will find some chromium and a lot of mercury and that fish eat the algae and store the mercury. He did not agree with using a 150 pound person, and stated that most people are heavier than that in United States. He also stated that contaminants like heavy metals, PCBs, and plastics are stored in fat and start to come out when people are on a diet and losing weight. These people can start having side effects and one of them may be autism.

A representative of Messerle and Sons, private land managers, opposed the rule. The family has managed resource lands for four generations and is concerned that this rule could potentially add another layer of regulation on farm and forest lands. They wish to continue working with the Departments of Agriculture and Forestry, agencies with whom they currently have good relationships.

There was no other testimony provided. The hearing was adjourned at approximately 3:35 p.m.