Water Quality Standards Hearing

9 – Salem Transcription

March 7^th, 2011

You guys have a long time to talk here tonight. [female laughter]

Jennifer Wigal - Alright, you're good to go.

Steve Schnurbusch- Okay. First of all, if anyone wants to testify, and they didn't fill out a sheet, please do so. They're in the back. Or if you've already filled one out and want to get it to me, please do that. So at this time, I would like to begin the hearing on the rule making for the revised human health water quality standards for toxic pollutants. The hearing is being recorded to maintain a permanent record. Today is March 7th, 2011, and we are in Salem, Oregon, and the time is 6:48.

I would like to begin taking comments. If anyone has prepared statement or other documents, it would help to summarize them orally, and then introduce the written material into the record. Written comments are given the same weight as oral comments. Comments will generally taken in the order received; however, out of courtesy to legislators or staff that may want to testify, we're going to allow them to go first. Please come up to the table here, and sit at the chair to speak. And when you sit down. please state your name for the record. So the first person to give comment is Senator Whitsett.

Doug Whitsett - Thank you. Thank you very much, My name is Doug Whitsett, and I represent District 28 in the Oregon Senate. That's most of Klamath Lake, (Crook?), Jackson, and Deschutes Counties.

female in audience - We can't hear!

Steve Schnurbusch - Well, we're just here to take the oral testimony.

same person - Oh, I see,

Steve Schnurbusch - It's not meant to broadcast to everybody. You can scoot up if you'd like to. There's seats here in the front.

DW - You are correct. My wife says that I mumble, and she's right. [laughter] My comments today are limited to observations regarding DEQ's response to questions asked at a February 11th legislative hearing. ODEQ Director Dick Pederson wrote in response to questions by Representatve Kennemer, Schaufler, myself, and other legislators, that no known studies have quantified fish consumption of all Oregonians. No reports or studies exist that document harm to human beings related to toxins consumed with a fish oriented diet. He then identified five studies that he believed to have been scientifically sound and relevant that the ODEQ has used to arrive at their numbers. Mr. Pederson's examples include information from the 2002 EPA fish consumption rate study, USEPA 2002 (b?) estimated per capita fish consumption in the United States. On page eleven, it states, "The CSFII surveys have advantages and limitations for estimating per capita fish consumption. One limitation of the CSFII survey is that the individual food consumption data were collected for only two days, a brief period, which does not depict usual intake/

Survey participants provided two non-consecutive twenty-four hour days of dietary data. Both days' dietary recall information was collected by an in home interviewer. The day two interview occurred three to ten days after the day one interview, but not on the same day of the week. The interviews allowed participants three passes through the daily intake record to maximize recall, three attempts to recall the desired outcome.

Under section 1.3 "Strengths and limitations of the USDA CSFII survey for estimating per capita fish consumption," it states "Low income individuals are oversampled to ensure their representation in the survey." I want to repeat that scientific oxymoron: "Low income individuals are oversampled to ensure their representation in the survey." Because daily averages are estimated from each respondent from only two days, the precision of an individual's daily average consumption is diminished. Therefore, the limited time period of dietary intake collection does not produce usual intake estimates. Non-consumption of a given food or food group by a majority of individuals, combined with consumption data from high end consumers can result in a wide range of observations. This can lead to highly skewed distribution consumption values.

From another one of ODEQ's scientifically sound and relevant reports, the "Human Health Focus Group Report Oregon Fish and shellfish Consumption Rate Project, June 2008" [title of report taken from written testimony], this group's report - reported scientific evidence was gathered from existing literature. There is no reference to any new data being collected on Oregonians specifically. This sound science is a literature review. The discussion and conclusions presented in this report were generated on one year, May 2007-2008, a relatively short time, considering the scope of the questions addressed.

Oregon's current numeric human health criteria are based on 2002 recommended Clean Water Act Section 304(a) water quality criteria. EPA derived these criteria by considering the known toxics of the regulated chemicals, and the likely exposure people have to these chemicals. EPA's current recommended Clean Water Act's Section 304(a) human health based water quality criteria are calculated using the national fish consumption rate of seventeen point five grams per day. This nationally recommended rate is roughly equivalent to three eight ounce [written document says two eight ounce] fish meals per month. The rate represents a ninetieth percentile of all people who were interviewed from across the USA. Until 2003, Oregon's water quality standards were based on a fish consumption rate of six point five grams per day, consistent with the EPA's default fish consumption rate. EPA increased its recommendation rates to a nationally based per capita default level of of seventeen point five grams a day, while urging states to rely on on local consumption data whenever possible. ODEQ has proposed fish consumption rates that are order of magnitude greater than that. It must be at the ninety ninth percentile.

From "A Fish Consumption Survey of the Umatilla, Nez Perce, Yakima, and Warm Springs Tribes of the Columbia River Basin," the survey of Columbia River Basin Tribes is regarded as a the study most relevant to fish consumers, most relevant at seventeen years old. No consumption of any shellfish or open ocean fin fish was reported. Since these questions were not asked in the interview, it is not clear how this may affect the fish consumption rates reported by the Columbia River Tribes. Although the raw data were not available for re-analysis, there was good documentation of the summary statistics conducted. I have to repeat that vignette as well. Although the raw data were not available for re-analysis in this scientific study, there was good documentation of the summary statistics conducted. On page ten, "The survey interviewers noted that the individuals had difficulties reporting the quantity of fish they had consumed. Overall, there was not sufficient information to calculate reliable fish consumption estimates. And from report, "A Fish Consumption Survey of the Tulalip and Squaxin Island Tribes of the Puget Sound Region," under this section, "Relevance," the tribe's survey is regarded as being relevant to Oregon fish consuming populations, although some of the fish and shellfish they consumed may not be found in Oregon waters. And from the report, "Fish Consumption Survey of the the Suquamish Indian Tribe of the Port Madison Indian Reservation, Puget Sound Region," "The Suquamish staff chose to include high consumption rates because they were familiar with the individuals eating those large quantities, and that the consumption rate reported were likely to reflect real consumption. With no adjustments made for the high consumption rates, it was noted that the reported means may be highly influenced by the consumption of just a few individuals."

And finally from the "The Lake Whatcome Residential and Angler Fish Consumption Survey' - that's the fifth report - the fish consumption rates from this survey were not useful because of inconsistencies of how the interviewee reported their fish consumption. the four week recall diet limited the ability the ability to fully quantify fish consumption due to the low number of people that consumed fish during that period." Going to back to the US EPA estimated per capita fish consumption report, the study does not report state specific fish consumer survey results from Oregon alone, but was designed as a national study. There was a wide variety of fish consumed in this survey, some of which may be found in Oregon waters. In my opinion, to call these reports scientifically sound is pathetic at best, criminally negligent at worst. This is the sound science that EPA and DEQ is citing to justify shutting down Oregon's economy. Thank you for the opportunity to put my observations on the record.

Steve Schnurbusch - Next up is Nina Bell.

Nina Bell - I'm Nina Bell, Executive Director of Northwest Environmental Advocates, and I will be submitting written comments, but I wanted to make a few observations tonight. One is that the criteria do need to be changed, And I'm sure that you've already heard quite a bit of testimony previously about the reason for that. But the quid pro quo going into the process of looking at adopting the criteria, and adopting other provisions that would be associated with the new criteria was that the point sources would be necessarily required to meet those criteria in their NPDS permits. And so whatever you want to call those - loopholes, offramps, regulatory flexibility - that was a part of the program going into the two year process, which I was one of many participants. But since the universe of sources in the world, point or non-point - and the point sources essentially are planned to be off the hook, which I'll get into in a minute - then that means that in order to achieve the new criteria, the non-point sources have to do the heavy lifting, they have to do something. But the problem is that even though the sort of general gist of things going on, particularly in the legislature, and some of the hearings that have been held previously, is that the sky is falling because the non-point sources are going to have to do something. In fact, as was made very clear by DEQ, and is clear when you read the materials and you look at the rule proposals, that in fact, under these proposed rules and changes to water quality standards, non-point sources are not going to do anything. So under the proposed rules, basically we have a paper work exercise of changing the criteria so that it looks protective on the books, putting the point sources through a paper work exercise of seeking variances, which will be quite costly, and no action at all on non-point sources, whether they're air deposition sources from burning, or facility emissions, or agricultural sources, logging sources, or any number of other non-point sources. So basically the upshot of all of this years of effort - and it has been an inordinately long (triennial?) review process for water quality standards this time around - is that Oregon will look as if it's done quite a bit. Some people are going to bear the brunt of financial paper work, or financial expense of paper work, and there will little, if any, environmental improvement. Thank you.

Steve Schnurbusch - Next up in Jonathan Schlueter.

Jonathan Schlueter - Good evening. For the record, my name is Jonathan Schlueter. I'm the Executive Director of a group called Westside Economic Alliance. It's a business advocacy group that represents all of Washington County and Western Clackamas County. I also serve on the Board of Directors of the Tualatin River Watershed Council in that capacity, but I'm not speaking on behalf of the council at this time.

The members of Westside Economic Alliance inhabit the Tualatin Basin, and most of my comments will be focused on the Tualatin River in particular. The Tualatin can variously be described as either a very slow moving river, or a very fast moving lake. [laughter in room] And that is part of our issue, because the standards that apply to all Oregon waterways will be applied equally to the Tualatin River. In the thirty eight years that I've lived in this state, and in the Tualatin Basin, the population of our basin has tripled, but the jobs base of our basin has quadrupled. We are the economic engine of the state. We account for one in four new residents to the State of Oregon, and we supply many of the jobs that fuel this state. To emphasize that we in the Portland Metro region now account for forty seven percent of the state population, we have fifty one percent of the jobs, but we account for fifty eight percent of the economic output of the State of Oregon. That doesn't sound like bragging, because I'm inclined to that, but the point is this: if you value public health care in Pendleton, or education in Burns, or public safety in Klamath Falls, let's appreciate the fact it's the jobs and the payroll in the Portland Metro region that are making that possible, and paying the bills. And costs that we incur on the businesses and the residents of the Tualatin Basin, and the Portland Metro region are going to have a direct effect on the economic vitality of the rest of the state, and whether or not we're able pay the bills, and the pay for the social services of the state. We’re reminded that a lot of state employees have been furloughed in the last year. We don't make that something that we want to continue. We want to have a prosperous economy, and a thriving economy. Therefore, let me offer three points for the record, and I'll follow this up with written statement to the department.

We must not regulate for the sake of regulating. The front page headline in yesterday's Oregonian speaks to the question of whether we should spend five hundred million dollars to try to filter and screen out a parasite that may or may not exist in the Bull Run Watershed of Portland, that is also tributary and servicing west side communities, including my home in Beaverton. Whether or not we actually have a problem; whether or not it deserves to be the source of five hundred million dollars of rate payer expense to try to comply is in question. Having listened to this presentation by the DEQ staff now twice, I'm still left with the question of what are the penalties or the consequences of non-compliance? We don't know what we are shooting at, and we don't know what the consequences are for having missed the target. That is a concern that will be difficult to communicate back to our members in both the public and private sectors.

Number two, we're requiring compliance with a moving target. We're very proud of the fact that in the Tualatin Basin, when I moved to that basin, we were under, if not a moratorium, the threat of a moratorium on building new homes and businesses in the Tualatin Basin because of the water quality problems in the Tualatin, and the failure to unify our water treatment systems. Well, we've invested millions and millions of dollars and gone through heroic efforts to clean up the basin, and last year, introduced a phosphorous recovery system in the clean water services treatment plants at Durham that are the nation's leader in phoshorous recovery, one of the inherent or indigenous contaminants in the ground water and surface waters of the Tualatin Basin, more so than other parts of the state, We were able to recover about three thousand pounds of saleable fertilizer pellets from the Tualatin outflow each year - excuse me, each day, and sell that product as fertilizer to farmers and golf courses, and whoever will take it. making a saleable product from a former waste material. That's a point of pride for the Tualatin Basin, and we're rewarded by the fact that this last two years that have been record numbers of coho salmon and steelhead migrating back into the Tualatin Basin. That, too, is a point of celebration for our area. But again, we stop and question, what are we shooting for? What is the goal? Where do we measure our success, and where do we declare victory?

The coho salmon, if we talk to our friends at the ODFW, will tell us that is a non-indigenous species above the Oregon City Falls at Oregon City, without the fish ladders. And without the locks that were built by earlier residents of the basin, those coho salmon shouldn't be above the Willamette Falls. When we use those as the bellwether, or the role model for which we set our standards, we are causing ourselves problems, because it's a species that has no more place there, right to be there, than the bass, the pike, the walleye, the crappie, the other non-game species that are also found in that waterway. So how we measure our success, and whether or not we've accomplished anything by the new standards and TMDLs remains in question and suspect.

Finally - I guess that would be my third point and final point - is that the regulations that are being proposed, and the TMDLs that are being suggested may place ourselves in conflict or contradiction with other regulatory agencies, first with the state government, and also with the federal government. The nutritional benefits of trying to consume twenty three eight ounce filets of fish each month may leave us crossways with health advisory requirements of either the USDA of Food and Drug Administration for sodium, or iodine, or other nutrient intake. I'd like to know more about that, and I'd like to know whether those fish intake levels are based on indigenous or native species, versus anadromous fish, or fish that are migrating through the area. If it is based on salmon and steelhead that are not native or not resident to the rivers for three years of their lives, and accumulate contaminants from other sources in their life span and migration patterns, that leaves us with a very different regulatory pattern than if we're trying to measure fish species that are indigenous, and spend their entire life span in the rivers, but may not be targeted fish species for consumption. Nobody really eats northern pike minnow, as far as I've been able to tell. But whether they accumulate the kind of contaminants and toxics that we;re discussing here tonight, at levels that are equal to, or a point of concern for human intake and consumption leaves me to question, what are we shooting at, and what is the _____ (objective?) I'll try to find the answers to those questions in the remaining time, and the other witnesses that we have before you tonight, and thank you for your time and consideration.

Steve Schnurbusch - Thank you. Are those your written comments?

JS -I'll write them up.

Steve Schnurbusch - Okay, next up is Jannine Jennings.

Jannine Jennings - For the record, my name's Jannine Jennings. I work with the US Environmental Protection Agency in Seattle, and manage the region's water quality standards program. The Clean Water Act requires states to revise their water quality standards to reflect the best available science. As a general rule, EPA believes that states are best positioned to develop and administer these revised water quality standards. In the even that Oregon does not promulgate its revised human health criteria rule, EPA is obligated under the Clean Water Act to promulgate a revised rule for Oregon. As Oregon has, EPA will be required under the Clean Water Act to take into account all available scientific data on fish consumption rates in Oregon. We currently believe Oregon's rate of a hundred and seventy grams of fish consumed per day is the appropriate rate. EPA believes that an Oregon rule is better for Oregonians because EPA will not be in a position to develop and administer the innovative compliance approaches Oregon is proposing at this time.

Steve Schnurbusch - Thank you. Next up is Wilbur Slockish. I apologize if I mispronounced your name.

male in audience - You guys have always been doing that ever since we got here. [laughter]

Wilbur Slockish - Good evening. My name is Wilbur Slockish. I'm a member of the Confederated Tribes and Bands of the Yakima Nation. And I also - I guess I'm one of the sub-populations, because, you know, you've got to remember, before there was anybody else here, those fish were our primary diet every day of our life. We consumed a lot more fish, but due to the restrictions, we've had to cut back. But we eat fish during our ceremonial events, funerals, births. So we eat more than what you're saying, and you need to remember that. It's not just a one time deal, or consumption just those days; it's three hundred and sixty five days a year that we eat. My family, we consume about ten of those a day, breakfast, lunch, dinner, snacks. So - and on behalf of myself, though, and my members - ten thousand registered members of the tribe, I urge you to adopt the proposed human health criteria for water quality, based on the fish consumption of a hundred and seventy five grams per day. And as I said, our ceremonial, commercial, and subsistence fishers, we have a cultural tradition of protecting our natural resources, and we support all efforts to improve water quality to a level sufficient to protect the fishery, drinking water, and environmental impacts. And we will not accept any idea of any alternative food source. Salmon and our natural foods is what we're going to stay with, salmon, our deer, our elk, our roots, and our berries. Those are the foods that we had, prior to the invasion, and we will continue to consume high rates of that.

Twenty years ago, we participated in the CRITFC survey that documented the fact that the tribal peoples were not protected by the fish consumption rate used by Oregon to calculate acceptable levels of toxic chemicals in the state's surface waters. Since that time, we have waited for the state to take action on these findings, and to protect the health of tribal members, and many others who regularly eat fish. Any further delay in setting water quality standards at a level that is needed to safeguard the health of tribal members and all Oregonians that eat fish from local waters is unacceptable. We must take steps to protect the fish, and the water that is so important to our people for the benefit of future generations. We are obligated to do whatever we can to restore the health of our water resources. I urge the DEQ to adopt these standards, and take this long overdue step that will begin to protect all people who enjoy the benefits of living in a land whose waters are protected from toxic pollutants. Thank you for your time, and allowing me to express my opinion.

Steve Schnurbusch - Thank you. Next up is Jenna Gillespie(?).

Janet Gillespie - For the record, I'm Janet Gillespie. I'm the Executive Director of the Oregon Association of Clean Water Agencies. We're a statewide organization dedicated to protecting and enhancing Oregon's water quality, and we represent over a hundred wastewater treatment and stormwater management agencies and associated professionals across the state. We certainly appreciate this time of the DEQ staff, of EPA, of the tribal nations, of our many partners in this work group, along with Ag and Forestry, the industrial dischargers, the environmental public interest groups, and our own municipal folks that have participated so long in these efforts. ACWA strongly supports efforts to reduce toxics to Oregon's water quality, Oregon's rivers and streams,

Our wastewater treatment plants operate to remove about eighty five or ninety percent of the pollutants that we receive from the communities that we serve. Our largest twenty five communities operate industrial pretreatment programs, which the limit the discharges of metals and other organics to our treatment systems. As three small examples of the toxics reduction efforts our organization has been involved with. We've been leading a collaborative stakeholder effort to institute and secure environmentally sound drug take back programs in the state. We are currently working to convince the most prominent eco-certification programs in the nation to incorporate Oregon's P-3 Priority Pollutant list into their screening programs, and our partnerships with the Oregon Dental Association have resulted in reductions in mercury emissions to all treatment plants in the state.

To meet the water quality goals for toxics reduction, all pollution sources must be involved and accountable for reducing their portion of toxics as we move toward the water quality improvements. ACWA supports the rule revisions proposed by DEQ for non-point source and TMDL-related rules. We think they can be stronger, And we will incorporate in our written suggestions how they might be strengthened.

Regarding the revised criteria, the overall program must be improved by adding a specific implementation element for each category of pollutants. The revised criteria should only go into effect when the implementation strategy is adopted by the environmental quality commission. Those implementation strategies should outline how the proposed toxic reduction strategy will resolve the underlying water quality standard issue through the adoption or TMDLs, use-attainability analyses, or site-specific criteria. The proposed revised water quality standard for PCBs illustrates the importance of implementation plans toward meeting these water quality toxic goals.

A technical report prepared for ACWA estimates that the PCB load to a medium sized Oregon community from human and food waste alone is many times greater by magnitude than the water quality standard proposed, which illustrates the need for basin-wide toxic reduction programs that can be implemented across a variety of programs. There are not feasible, effective, wastewater treatment technologies for these low levels as proposed for PCB and other legacy contaminants.

We do have several concerns regarding the use of variances as a compliance tool, the only one available for municipalities, Variances are a burdensome, expensive regulatory process with an uncertain outcome. They are required by EPA regulations to be short term and temporary. They will be expensive to obtain and renew, and they will not resolve the underlying water quality standard. The water quality standard should be a subset of the department's overall toxics reduction strategy, and we remain interested in seeing the adoption of DEQ's comprehensive toxics reduction program prior to the adoption of the revised water quality standards.

ACWA strongly supports efforts to reduce toxics in Oregon's rivers and streams, and to be most effective, these programs should be developed on a watershed basis, and focused more broadly than the water quality permit holders, and linked to effective toxic reduction programs across the basin. And we will be submitting detailed written comments.

Thank you.

Steve Schnurbusch - Thank you. Next up is Mitch Pond.

Mitch Pond - Yes, good evening. My name is Mitch Pond. I'm a member of the Confederated Tribes of the Umatilla Indian Reservation, and serve as a member of the Tribe's Fish and Wildlife Commission. I want to thank you for this opportunity to comment on the - this is my written statement for our tribe. Thank you for this opportunity to comment on the toxics and fish consumption rate rule-making.

The CTUIR and its Fish and Wildlife Commission believe we need the proposed rules that strengthen water quality standards for toxics. we specifically endorse the higher fish consumption rate that is included in those standards. We strongly encourage the Environmental Quality Commission to adopt them. The proposed fish consumption rate of a hundred and seventy five grams per day is supported by rigorous scientific study and analysis. This rate was also discussed and debated in a two year, open, public process. That public process involved many of the stakeholders that have provided testimony to the DEQ.

The proposed fish consumption rate is needed to help protect the health of nearly all of our tribal members. Salmon is a sacred tribal first food, and fish is a staple of our tribal diet. Over ninety five percent of our tribal members consume fish in quantities that greatly surpass the current fish consumption rate, but we are not the only ones. There are other communities in the Pacific Northwest that have similar fish consumption rates, including those of Asian, Pacific Island, and Eastern European descent. The current rate is outdated and inadequate.

Indeed, tribal fish consumption rates are increasing since the lows of the mid-1990s, along with the increased numbers of returning salmon and steelhead. It should be remembered that salmon in the Columbia Basin started being listed under the Endangered Species Act in the early 1990s. Tribes voluntarily went without harvest in order to conserve the runs. Since that time and before, the tribes have worked with state and federal agencies to restore the runs, using collaboration when possible, and litigation when necessary. The restoration of the first foods was always first and foremost in these efforts. Now we are seeing the results of those efforts with years of record salmon returns, increased numbers of tribal fishermen returning to the river, and the increased fish consumption that goes along with more fish.

It is not hard to imagine eating a hundred and forty pounds of fish over the course of an entire year. This is especially so considering it is a first food of tribes, it is a staple for many other Northwest communities mentioned above, and is gaining greater recognition as an important part of a healthy diet in Oregon and throughout the United States. Even the USDA's dietary guidelines for Americans, 2010 encourages increased fish consumption. For me, it is easy to imagine eating a hundred and forty pounds of fish over an entire year. That is only half the amount of meat an average person eats in one year, as well.

While some have expressed concerns that the proposed rules would allow DEQ to target agricultural and other land management practices with more restrictive regulations regarding non-point sources, the proposed rules would not change existing authority. Further, DEQ has not given no indication that it intends to expand its regulatory mandate.

The proposed rules will also enable Oregon to maintain control over our water quality instead of having these rules, including additional related restrictions imposed on them by the federal government in the form of EPA. The ultimate goal of this proposed rule-making is to better protect public health, That includes the health of tribal members and the entire Northwest, including all Oregonians who are catching and eating more fish.

In summary, in conclusion now, we need to take better care of our land and our rivers. In our Treaty of 1855, we were guaranteed the right to fish and hunt, and gather our foods in all the accustomed places and stations, and that gave us responsibility as a tribe. It gave us a directive. And the fish is one of our first foods. And our first foods are fish, and our elk, and our deer, our salmon, and berries that we gather. They were given to us. They were given to us by our creator, and we have to take care of them, and we have to protect them. As coworkers here all tonight, probably, and as co-managers, we need to come together and find some workable solutions. We need to better protect our land and our rivers for the benefit of our children and our children's children.

Thank you.

Steve Schnurbusch - Thank you. Hopefully I don't mess up this last name. Next up is Don Winishut Senior.

Don Winishut - Thank you. (Native American word?) My name is Donnie Winishut, Senior, and I'm a member of the Confederated Tribes of Warm Springs. I'm also a member of the Warm Springs Fish and Wildlife Committee. On behalf of myself and the five thousand registered members of the tribe, I urge the DEQ to adopt the proposed human health criteria for water quality, based on a fish consumption rate of one seventy five grams per day. The hundred and seventy five grams per day fish consumption rate is based in part on a comprehensive survey of the ceremonial subsistence consumption habits on the Warm Springs Reservation, along with that of other members of the Columbia River tribes.

The study proves that the consumption of twenty three eight-ounce servings of fish meals per month is a realistic value that represents the fish consumption habit of our people. Not too long, rather than imposing stricter quality standards for the waterways, state agencies have recommended that the tribal people eat less fish. We need to be understood is that fish is not only a major source of food for tribal members, it is also an integral part of our cultural, economic, and spiritual well being.

The tribes signed a treaty in 1855 that ceded millions of acres of land in order to retain our rights to take fish, hunt, and gather roots and berries at all usual and accustomed areas, therefore protecting our way of life in perversity (written document says 'perpetuity,' not 'perversity.' )These treaties protect rights are being threatened if our fish and the waterways they reside in are contaminated. Our ceremonial and subsistence fisheries, we only rely on water quality standards that are protective of health and livelihood of our people. We share the responsibility the protect this water resource that is so important to our people. We must restore the health of the water to protect our own health.

I urge the DEQ to adopt standards that are based on these reasonable and reliable measures of fish consumption in Oregon. Thank you for the opportunity to express my views, not only for myself, but for the Warm Springs Tribes of Oregon. Thank you.

Steve Schnurbusch - Thank you. Next up is Diane Barton.

Diane Barton - Good evening. My name is Diane Barton. I'm the Water Quality Coordinator for the Columbia River Inter-Tribal Fish Commission. Our organization assists its member tribes in the development and implementation of salmon restoration projects. We also call that organization CRITFC. CRITFC's goal is to rebuild the fisheries that produce one of the healthiest foods on the planet. Fish is a good source of protein, and unlike fatty meat products, it's not high in saturated fats, and is a great source of Omega-3 fatty acids. The American Heart Association recommends that the general public eat more fish, at least two meals a week. The only reason this recommended amount is not higher, is because fish accumulate contaminants. Despite that fact, it is still healthier to eat fish than to not eat it. A key contributor to a healthy fishery and the positive economic impacts that that has for our state is clean, cold water. We must take the steps necessary to protect our state's fisheries from the harmful impacts of waterborne pollutants.

It was a CRITFC study that measured a mean tribal fish consumption rate of sixty three grams a day. This is very close to the number that was brought up earlier this afternoon, or this evening. from a UN study that said forty six grams a day; that's the mean. The ninety fifth percentile number is the hundred and seventy five grams a day. You have to understand there's a difference in that calculation. One hundred and seventy five grams per day is a reasonable and protective value then for ninety five percent of the population. A hundred and seventy five grams a day - remember, that's the ninety fifth percentile number - works out to a hundred and forty four pounds of fish a year. Maybe that sounds like a lot, but how many Americans do you know that eat meat at every meal? In fact, the average American eats two hundred and seventy five pounds of meet per year, according to a 2004 UN survey, and that's the mean, not the ninety fifth percentile. They should be eating more fish. So a hundred seventy five grams a day is not an absurd or non-realistic value.

Some might question the validity of using consumption of marine fish in a calculation for Oregon surface waters. On this question, we need to only look at a 2007 paper in the Environmental Monitoring and Assessment Journal that measured the presence of DDT, PCBs, and pesticides in juvenile fish, which demonstrates, of course, that these toxic chemicals - or the fish are exposed to these toxic chemicals during the freshwater portion of their life cycle. In 1994, an EPA study of contaminants in fish studies in the Columbia River Basin found the presence of ninety-two contaminants, including DDT and its breakdown products, PCBs, flame retardants, and mercury.

Maybe even more worrisome is that recent evidence from the USGS - that's US Geological Survey - researchers that are finding emerging contaminants. They're showing up in fish tissues. Chemicals like pharmaceuticals, endocrine blockers, plasticizers and others like these that are not even on the current water quality list. The impact of pollution on Oregon's fish is not, as some have said, quote, unquote, "a theoretical problem." It is essential that steps be taken to lower the level of toxic contaminants carried to our surface waters so that the fish we eat becomes a more healthful food, and an economic resource for the state and for the tribes.

Some might suggest that the tribes and other members of the sub-population that eat fish are indulging, quote, unquote, in unhealthy habits, and simply recommend that these groups of people eat less fish and make the problem go away. They might think, why should the rest of us have to conform to the habits of a small group of people? The cause of this problem is not going away. The presence of these contaminants in our water and in our fish is a harbinger of things to come. There are coming health and economic impacts, and the cost to living on a planet with contaminated water. Should we wait until pharmaceuticals like Oxycodene and methocarbamal are measured in our drinking water, or should we, instead, take note of these early warning signs seen today in fish tissue, and should we start investing in methods to deal with that problem now? Should we leave a legacy of PCBs like PCBs that were left to us? Fish tissue and water chemistry data clearly show that Oregon's old water quality standards are not protective of the health of Oregonians. Today's problems with legacy pollutants and emerging contaminants will not be solved by yesterday’s solutions. Concerns about quantitation limits, and the ability to meet standards have been voiced throughout the public comment period. The tribes that CRITFC represents recognize the difficulties that some of the new standards will create, and we're willing to support interim measures, and to seek cost effective and long term solutions to eliminating toxic chemicals from the Oregon waters that we all share.

In a previous position that I held at Sandia National Laboratories in New Mexico, I was part of a group that developed and implemented in-field innovative technologies to remove contaminants from ground water. I have a first hand understanding of the problems associated with removing trace contaminants. It's a difficult problem. However, I believe that imposing tougher water quality standards will drive the development of affordable and effective emerging technologies into the marketplace.

According to Dan Reicher(?), Executive Director of the Steyer-Taylor Center for Energy Policy and Finance at Stanford University, experiences since the 1970s on clean air policies have made clear that well conceived and executed regulation ultimately stimulate technological innovation. New innovations in water remediation would potentially benefit our region's leadership role in technology development, and would provide a means to finally address the issue of legacy contaminants in our nation's waters.

In conclusion, I would like to emphasize that the tribes have economic interests in the sustainable development of our own natural resources, as well as a culture of natural resource stewardship. Environmental stewardship means that we carefully consider the consequences of our actions on the world around us, and on the generations yet to come. Environmental stewardship means consideration of our inaction, as well. Today we have the opportunity to take constructive action for the future. We have an obligation to future generations which requires us to invest the time and the money needed to solve this difficult issue of legacy contaminants that we've been left with, and the issue of emerging contaminant in our watersheds. I urge DEQ to adopt the standard. Thank you.

Steve Schnurbusch - Thank you. Next up is Cat Koehn.

Cat Koehn - That name is pronounced "cane." It does look like "Cohen." It's K-o-e-h-n, and it's my ex-husband's name, and I'm looking for a guy named Jones to marry. [laughter] I'm going to turn around and face you so you can hear me, and make sure (Gene?) doesn't fall asleep back there, because I don't think - I think this is the _____ _____ injured on those two things.

Well as I initially said, I am here mainly to talk about problems with sediment ion that are a concern of mine, and also, the regulations concerning the three basin rule, and the need to improve your anti-degradation things. You do start out by saying in page seven of your documentation here of the overall executive summary that you will consider - now, you're not doing, but you will consider revisions to water quality standards to address circumstances where facilities may not have treatment technologies available to meet calculated limits in NPDES permits. And since I already told you about my gripe up the McKenzie, where all this sediment is flowing out of Quartz Creek - and I have heard that, indeed, in the future, there might be necessary to have these NPDES permits if a clear cut is putting sediment into the waters, then I wonder if - how you're going to address that. You also say that you will consider revisions to water quality standards to address toxic pollutants that may adhere to sediment and transport through soil erosion. And then you say you might address anti-degradation, but you're not doing that now. So one of the things I just want to toss in at that point is you also need bioassays before you can actually determine any narrative criteria, and apparently you're going to have to rely on quite a bit.

And I just wanted to make a note about the fish consumption. I don't understand the big hubbub that might - must have some horrible economic impact. But basically, in science, one general way that you can assess the threat to any system is to look at the most sensitive species. And in this instance, we're very lucky that the Native American tribes survived everything we've done to them and the fish in the river thus far, because they are indicator species for us. So how to protect our health is by protecting their health. And it really makes me mad when I hear them saying people tell them, "Don't eat more fish." That's like "Don't breathe anymore, mister." And what we need to do is clean up the river and clean up the fish, and not tell the Indians to eat less fish. We need to decontaminate the fish by decontaminating the river.

And I have - in your printout, you also are talking about your background pollutant allowances. And you're only addressing cancer-causing chemicals, so I guess you guys are looking for dead bodies or something. But I think that all toxic pollutants, and anything on that long list, and then a whole bunch of stuff you left off, like chlorpyrifos and copper and thing. You've neglected to take into account the synergistic character of multiple toxics. And in fact, nobody does know what it is, but I can tell you right now, it is not good.

And on page eleven you say the things that you're not pursuing. You're not going to do sediment levels, sediment testing, or take that into account. And you're also not going to do this antidegradation. Well, I have a document I'd like to remind the DEQ about. When I was an intern at the Salem DEQ here about twelve years ago, I think, for the Willamette project that Kitzhaber put forth, one of our dictums was to compile the 303-d list for the Willamette Basin. And this is a list of seventy five pages of toxics and fifteen (hits?) a page, all exceedances of established criteria. And basically, we hardly have any limits that even establish what our exceedances, so this is like smoking gun. The DEQ never turned it over to the EPA, and I would like you to look at it, if you don't think there's any problems with the sediment.

On page three of this, the type of problems that we're looking at - I'll just pick one. In toxics, copper, probably the single most deadly think for salmon, the level, or the criteria, should not exceed sixteen milligrams per kilogram. And in testing that was done in '89, there were three instances of four samples, and the highest one was sixty five milligrams per kilogram. So if you don't think there's any problems in the sediment, please take a look at your own list that you compiled that's still in your document base.

Now to my comments. Here's what I would suggest you do. You need to improve this about sediment, non-point, and antidegradation. First thing you need to do is to - do not make variances for water quality standards that are not going to be any more stringent, because they won't pass the Clean Water Act dictum. Number two, background pollution allowances won't square with the Clean Water Act, and why should Oregon, the environmental leader, become the only state in the nation that has allowable pollutants to be passed. Number three, non-point sources from fields and forests are not sufficiently either acknowledged or addressed in your plan, and it appears more likely business as usual. It really does sound like we're going to talk about it; don't worry, we're going to go talk about it. Well, you have been talking about it. We need a little action.

And you should accept these plans, and I really do appreciate all the work and effort that you've put into it, and all the effort that people have put into it to help this effort. But you need to go back and establish time limits when the Department of Forestry and the Department of Agriculture are going to have something that will credibly keep the EPA from taking over our state agencies. So millions of pounds of toxic pollutants are put in just by agriculture alone, and we all live downstream, and it's rainin'.

Number four, your commitment to toxic reduction is being compromised by the exemption of stormwater compliance. The DEQ should require briefing from stormwater project that you have, and reexamine whether they really reduce anything. Runoff is the number of one cause of pollution in the rivers. And agriculture is the state's largest contributor. They use two-thirds of our water every day. Also, you need more stringent stormwater permits themselves, and you need those best management practices I was telling you about, buffers, because the people up the river, we want to know, is it a thousand feet? Is it two hundred feet? Is it fifty feet? So we want to know by size of stream and characteristics of the watershed, what we're being expected, in watershed councils and farmers and stuff, to do. And as that one lady mentioned, there were ninety two types of chemicals found in it.

And also the bi-state report that was done even before we compiled these statistics here exposed the extent of the sediment problem. It must be addressed, and it needs to be started by assessing the sediment because that's where the pollutants are. And you also need to improve your turbidity standard, because it's virtually incomprehensible. I have a masters degree in education, and I couldn't explain it to you if you gave me fifty bucks. Moreover, watershed councils and ordinary people are not going to be able to effect this. So I hope that there's some funding in place for people. And also, it would be a good idea to have a single trigger level that exceeds five thousand kilograms per pound or something then, because I can bring you back single tests, but I can't bring you back weeks, or months, or years worth of testing to prove it, so I will go and file a complaint, which Janet recommended. That's the next thing I'm going to do.

And the sediment was the worst in exceedances in things like PCBs, heavy metals, dioxin, and arsenic. We need to protect our own public health by demanding that the state do what we all thought we were paying for a state agency to do, to be rigorous, and set up the most stringent type of requirements, do it right. And I've just go to add here that I'm really ashamed of the fact that Oregon - the only reason why we're all sitting in this room is that for decades, lawsuits have had to be filed about this, and the EPA had to come and breathe down your neck and say, "Go back and do it right." So I'm hoping that you will really take into consideration all these comments, because they're really trying to assist you. You also neglected to quantify the economic benefits of protecting us, and I don't think you can put a price on that. The commercial fishing industry alone (accounts?) for millions of dollars.

So in summary, I would like to say that you should pass this, and no more delays. But nobody has the right to pollute, including (writin'?) permits, as far as I'm concerned. And we don't need any (sounds like "day minimus?) monkeyshines. I don't even know what that is, but I know it's some giant loophole. We don't need giant mixing zones. because I sat in on a bunch of Willamette TMDL meetings over by (Halsey?), where they did every equation known to man, and you just can't put more hot water in a really hot thing and still pass your temperature standards. So please provide funding for the testing that are a requirement. Thank you very much for listening.

Steve Schnurbusch - Thank you. The last one I have here is Ivan Maluski.

Ivan Maluski - Yep, or Maluski. Hi there, for the record, my name is Ivan Maluski. I'm the Conservation Director of the Oregon chapter Sierra Club. We have already submitted some comments, along with Columbia River Keeper, and I'm a member of their organization. So those will be our official comments. I wanted to come here today to just, you know, add a few things in person, and urge the DEQ to adopt the hundred and seventy five gram per day consumption rate. I want to thank the hard work that the DEQ staff has put into this, that Columbia River Inter-Tribal Fish Commission, and the members of the Confederated Tribes of Umatilla and Warm Springs have put in to try and get this right over the years.

We have a little background. You know, we worked on Senate Bill 737 a few years ago, 2007, so I like to think of this new fish consumption standard really as a first step, because it's very clear that reducing toxics in our rivers and streams is a process. It doesn't just happen overnight. And so one of the key things from Senate Bill 737 is municipalities really took a big step forward in terms of trying to reduce the pollution that they're putting into the waterways. And they took on the responsibilities. They agreed to develop pollution reduction plans. And unfortunately, during that process we were never able to get industry to live up to the same standards as municipalities were. So I see this fish consumption standard as an important way in which industry can finally live up to its obligation on starting to reduce some of these toxics.

It is true that, you know, well conceived regulation actually can spur technological innovation, and that's something that Oregon does really well. We innovate, we create jobs in doing good things, and I think that this should be seen as an opportunity to help drive that next wave of innovation. The sky will not fall because we control our pollution, so we need to make sure we're investing in the right pollution control strategies.

Another piece here is that, you know, I think that I would advise that the DEQ work very closely with ODA and ODF on the next phases of this. They just do not have a history of regulating pollution in a very effective way, versus the Oregon Forest Practices Act, or agricultural water - you know, water quality practices. So I think DEQ is going to have to be involved in helping them monitor, and helping them implement and develop strategies, and ultimately coming back and saying, you know, no, we've got to do it a little better than what you've come up with. So I wanted to flag that now, because I think that it's going to be challenging on the non-point source front, but it's a critical piece of this, and ODA and ODF can't do it alone.

So kind of in conclusion here, I think that we have to think of part of this, in some ways, as a bit of a hedge against climate change impacts as well. Twenty, thirty years down the road, we may find that we have less water in our rivers. Our water quality is suffering for a variety of reasons, and so I think that, you know, planning for the future, setting a high standard now that covers the broadest range of people in terms of fish consumption is going to make sure that we've got healthier rivers twenty, thirty years down the road, as they face other threats related to climate change. So thank you very much.

Steve Schnurbusch - Thank you. Was there anybody else that decided they wanted to testify? No? Well, that concludes the hearing. I thank you all for coming. I think some of us have offered to stay around if you have - want to talk to us individually. Thank you.