Rulemaking Workgroup: Non-NPDES Source Issues, Meeting #5Rulemaking Workgroup: Non-NPDES Source Issues, Meeting #5
May 20, 2010, 1:00 PM - 4:00 PM
Location: EPA 5th Floor Conference Room
Portland, OR
Present for all or part of the meeting (in-person or on the phone):
Workgroup Members: Emily Ackland (Association of Oregon Counties); Nina Bell (NWEA), Myron Burr (AOI), Lauren Goldberg (Columbia Riverkeeper), Chris Jarmer (Oregon Forest Industries Council); Jannine Jennings (EPA), Peter Ruffier (League of Oregon Cities), Jennifer Shmikler (OR Farm Bureau), Mary Lou Soscia (EPA), Ryan Sudbury (CTUIR), Kathryn Van Natta (NWPPA), Dave Wilkinson (ODA), Terry Witt (Oregonians for Food & Shelter)
Other Representatives: Ken Bailey (BOA), Peggy Browne (OR Farm Bureau, on the phone), Gene Foster (DEQ), Ellen Hammond (ODA, on the phone), Lisa Hanson (ODA), Greg Lande (DEQ), Kevin Masterson (DEQ), Andrea Matzke (DEQ), Neil Mullane (DEQ), Steve Riley (ODA), Debra Sturdevant (DEQ), Kathryn Walker (Oregon Dairy Farmers Association) Jennifer Wigal (DEQ), Ken Williamson (EQC)
Also Present: Donna Silverberg (DS Consulting, facilitator), Stephanie Brandon (DEQ, note-taker)
Action Items from this Meeting (Summary notes to follow):
1. Submit additional comments to DEQ via email regarding Implementation-Ready TMDLs, the antidegradation proposal and the Division 41 rule changes by 6/3.
2. DEQ will respond to the additional issues identified today in the revised Implementation-Ready TMDLs Issue Paper.
3. DEQ will revise the Implementation-Ready TMDLs Issue Paper and bring it back to the group for discussion in June or July.
4. Division 41 rule changes will be discussed again at the June or July meeting.
5. DEQ will gauge stakeholders’ support of these issues in June/July.
6. Put Gene first on the June/July agenda to make sure that we can adequately cover his topics.
Welcome, Introductions, and Review Goals (Donna Silverberg)
Donna welcomed the group, reviewed the goal for today’s meeting, and conducted a round of introductions.
Goal: Gauge support for DEQ’s recommendations on topics covered today and provide background information.
Announcements:
Jennifer Shmikler thanked Gene and Jennifer for coming down and presenting to the Oregon Farm Bureau.
Summary of DEQ’s Interactions with ODF and ODA (Gene Foster)
This topic for discussion was requested from the workgroup at the April 27th meeting. Gene gave a brief presentation. See Non-NPDES scope, rule language, and Implementation-Ready TMDLs issue paper.
Gene gave an overview of regulatory relationships for traditional non point sources (NPS). He handed out several Ag Water Quality Management Area Plans (AgWQMPs) to the group for them to look at as examples of identified water quality issues and desired outcomes. He explained that DEQ provides input on the area plans which are reviewed every two years. DEQ may be changing how they interact with the plans by requesting more specificity in the potential action portion of the plans what will be needed to reach desired outcomes. Gene discussed sufficiency analysis of the AgWQMPs. DEQ does not have authority to approve AgWQMPs. DEQ approves TMDL implementation plans submitted by DMAs. EQC can petition the Director of Ag if they are being “insufficient.”
Questions/comments from workgroup members and others:
• Question: It seems like a reporting mechanism may be missing. Is this a process issue or are we struggling with staffing/resources to get all this done?
o Answer: This is a process issue; we need to ID basin coordinators and get them more involved in the area plans by adding ideas for actions.
• Question: Is there any attempt to quantify the success of the AqWQMPs or monitoring?
o Answer: There was interest in adding monitoring sites, but this was not approved by legislature.
Antidegradation Implementation for Nonpoint Sources (Debra Sturdevant)
See Antidegradation Issue Paper and Debra’s Powerpoint presentation.
Antidegradation is the policy that establishes a process for DEQ to decide whether to allow a lowering of water quality. It is a federal regulation and a WQ standard. Two major pieces are: the antidegradation rule and the antidegradation IMD. The IMD focuses on permitted point sources and projects requiring 401 certifications. The IMD does not address how to apply policy to NPS. The goal of antideg is to get out in front of potential problems before they occur.
The components are: WQ Limited Waters (can’t degrade WQ, exceptions are with findings by DEQ or EQC) and Outstanding National Resource Waters (have state or national significance as designated by EQC and must be “high quality” waters. There are none designated in Oregon).
• Question: Why doesn’t OR have any ONRWs?
o Answer: It has not to date been a priority given the other work the standards program has had to do and our limited resources . Waters that may be named “high quality” already have designations to conserve them. Plus, it is difficult to meet the “high quality water” designation.
Recommendation #1:
Revise OAR 430-041-0061.
Recommendation #2 (DEQs preference):
No rule change is needed at this time. Instead, DEQ would add a chapter to the antideg IMD that will describe how DEQ the antideg policy will be implemented for NPS. To do this, DEQ will work with the other resource management agencies to develop a draft plan by the time the EQC adopts the revised toxics criteria and finalize that plan within 6 months of the rule adoption.
• Question: Is DEQ’s proposal to do these two things and limit the work to these?
o Answer: The proposal says that there is no actual rule change needed for this, and DEQ would commit to their recommendation according to the proposed schedule.
• Question: Will the new Fish Consumption Rate (FCR) lower the standards and make more TMDLs necessary to address the standards issues?
o Answer: DEQ will be taking a deeper look at WQ in the state. This won’t happen across the board because there isn’t data for all the streams.
• Comment: The real concern is the number of stream miles in Oregon that don’t meet standards which hasn’t changed over many years.
• Comment: Some of these streams are listed inappropriately. Improvements in WQ based on NPS don’t show up immediately.
Response: The TMDL process is a reactive process. The purpose of antideg is to be more preventative and address problems out front. This is why procedural issues are important.
• Comment: Workgroup member has problems with the way the questions have been outlined for the recommendations (see page 3 in the Memo). The cost-effectiveness of the process has not been addressed. Does DEQ have the capability to implement this? This is inappropriate criteria to use to decide to do something. Workgroup member does not like DEQ’s responses to the mixed media subgroup memo.
o Comment: Another workgroup member disagrees with the previous comments on the inability to implement the recommendations. It doesn’t do any good to come up with solutions that can’t be funded, especially when you are deciding between different alternatives.
• Question: Does ODA’s biennial review of the AgWQMPs only take 2 years?
o Answer: Yes, they are being done every two years. It only takes a few meetings for them to be reviewed.
• Comment: Recommendation #2 states that DEQ will do the IMD within 6 months of the action. This means by Nov/Dec 2011. Is this an internal DEQ process? What is the standard of review for reasonable and cost effective BMPs?
o Answer: DEQ does not know this process yet. DEQ will need to work with folks outside the agency.
• Comment: Is DEQ going to duplicate the efforts that other agencies have already done? What will the IMD look like at the end of the process?
o Response: If other agencies have already identified the reasonable and cost effective practices, then DEQ wants to know the process for identifying these to reflect that in the IMD. DEQ does not know what the final document will look like until they start working on it.
• Question: What is the relevance of the document, what is the scope, and how will it be used?
o Answer: It would be a chapter in an IMD . DEQ won’t be prescribing BMPs, it will not be that level of detail.
• Question: Is DEQ going in the direction of moving towards more regulation? When issues arise, there is a lot of talking between DEQ and ODA, but nothing seems to get done. How does this group identify everything that is already being done? There is already a lot being done, but it isn’t working.
o Answer: DEQ is not necessarily moving towards more regulation but we are looking to improve the processes so things work better. There is a lot of good work being done and a few bad actors. We need to be able to respond to both.
• Question: Has DEQ considered what are cost of reasonable and effective BMPs and who pays for them?
o Comment: What is the cost if you don’t do them? If things aren’t implemented properly, somebody will pay. Regardless if we do it or not, somebody pays. EQC is not interested in more regulation or enforcement. We want to move forward with things that are already available.
Implementation-Ready TMDLs (Gene Foster)
Gene discussed the Draft Implementation-Ready TMDLs Issue Paper. DEQ needs to do a better job of source identification. DEQ wants to add more specificity in the TMDLs for what it will take to meet the load allocations by using BMPs and pollution reduction measures. DEQ wants to do a better job of identifying areas that need more restoration activities (vs. doing random acts of conservation).
• Question: How would DEQ identify those activities?
o Answer: For temperature, we are using system potential vegetation. DEQ will also look at land ownership and focus on folks that have larger parcels of land. This is done in cooperation of a variety of agencies (OWEB, NRCS, SWCD, OSU Ext, ODA, WSC).
• Question: Is this done by monitoring?
o Answer: For temperature, DEQ relies on stakeholders to do the monitoring and to provide data. For sediment, this would be a different conversation with the same stakeholders on what is allowing the sediment to get into the stream. This might take remote sensing to identify sedimentation that is occurring.
• Comment: SWCDs and watershed councils are great at providing data on this.
• Question: How does DEQ plan to work with AgWQMPs in the TMDL process?
o Answer: Stakeholders will provide input.
• Question: Are there any basins that don’t have TMDLs?
o Answer: Yes - South coast, Mid coast, Deschutes, entire SE Oregon, Powder and Burnt. The Willamette is up for revision in 2012.
• Comment: Implementation-Ready TMDLs are the same as prescriptive TMLDs. They should be taken off the plate because there is already too much on it.
• Comment: On page 4, #2 – Proposed rule language on air deposition and land sources. The proposed rule language does not correspond to what the subgroup had agreed on. The idea would be to identify significant sources to not create too much of a burden. Note that the language says “wasteload” allocations and this should be “load” allocations.
• Question: DEQ needs to do modeling at a finer scale. What is the definition of “significant”? Who will pay for this modeling?
o Answer: There is no official definition of significant. We are talking about air coming out of a stack that would be treated as a NPS and modeling would go into an AQ permit.
• Comment: Data is being collected at the national level on dairy air and its impacts. Research is coming, but it is not done.
• Comment: We also need to talk about air sources not in this country that affect WQ. And, if we talk about land sources, we need to include mines.
o Response: When we are talking about air sources, we are talking about stacks. If the source is outside the state, then we would work with other states. If the source is outside the US, then we look at loading onto the soil and how to keep the soil on the land.
• Comment: We need to consider that the air pollution comes from non point sources like cars, other countries, etc.
NEXT STEPS: WG members were requested to have comments to DEQ on its issue paper by June 3rd. DEQ will revise the paper and bring the issues back to the group for either the June 30 or July 15 meeting.
Division 41 Proposed Rule Changes (Gene Foster)
Gene discussed the Division 41 Proposed Rule Changes Document.
• Question: There are definitions in rule for farming practices and agricultural uses for DEQ to include. Where was DEQ planning to use this definition in the rules?
o Answer: It comes up in Division 42 for how DEQ deals with load allocations and how DEQ deals with sources and DMAs.
• Question: DEQ might want to use the term “agricultural activity.” Are the safe harbor BMPs still in play?
o Answer: That document will be revised depending on how the issue paper develops.
NEXT STEPS: WG members were requested to have comments to DEQ on the Division 41 proposed changes by June 3rd. DEQ will revise the paper and bring the issues back to the group for either the June 30 or July 15 meeting.
Wrap Up (Donna Silverberg)
June/July Meeting Agendas:
1. Division 41 rules
2. Sediment
3. Pretreatment
July is the last meeting for this workgroup to discuss these issues. In August, DEQ should have most of the package ready and the workgroup will review the fiscal impact statement. In September, the workgroup will review the entire rule package.